Justice Ruth Bader Ginsburg wrote a magnificent dissenting opinion in Shelby County v. Holder more than five years ago. She dismantled the argument of the 5-4 majority. She exposed both its hubris and shallowness in “striking at the heart of the nation’s signal piece of civil rights legislation,” the 1965 Voting Rights Act.
At one point, Ginsburg recalled Selma, Ala., and the “Bloody Sunday” beatings of peaceful civil rights demonstrators, the episode that finally spurred Congress to enact the legislation. She reminded about the march from Selma to Montgomery, where Martin Luther King Jr. called for passage and, more, “a steadfast national commitment to see the task through to completion,” in Ginsburg’s words.
That is what the court majority abandoned in its ruling — that “steadfast national commitment” to finish the job. It did so by disarming a key mechanism for enforcement. Yet the court also invited Congress to rework the mechanism. Thus, there is the additional shame. All this time later, lawmakers have yet to act.
The new House Democratic majority has pledged to advance a bill. Unfortunately, this isn’t 2006, when the House approved the reauthorization of the Voting Rights Act by 390-33, and the Senate, 98-0. In signing the bill, President George W. Bush cited how the law “helped bring a community on the margins into the life of democracy.” He promised to “vigorously enforce” its provisions and “defend it in court.”
Which gets to the hubris of the court majority, or its blatant judicial activism. The majority showed disdain for the overwhelming legislative support from Democrats and Republicans. Writing for the majority, Chief Justice John Roberts argued that lawmakers failed to account sufficiently for the progress of the past five decades. He pointed to such things as increased black turnout and the election of black candidates.
So much progress has been achieved, he reasoned, that the “preclearance” provision of the law no longer applies. The provision requires states and localities with a history of voting discrimination to get federal approval before making any changes to voting procedures and election laws. The court found outdated the formula for deciding which entities fall under the provision.
Justice Ginsburg countered: Don’t be so sure. She stressed the progress has been due to the presence of the strong preclearance provision. By requiring states and others to get permission, problems are addressed on the front end, the premium on action and avoiding lengthy litigation.
Ginsburg added that the provision explains why the country finally started to deliver on the century-old promise of the 15th Amendment, that the right to vote “shall not be denied or abridged on account of race, color or previous condition of servitude.”
Most telling, the justice reviewed the exhaustive work of Congress in crafting the renewal of the act, the record including 21 hearings and 15,000 pages of testimony and documentation. James Sensenbrenner, a Wisconsin Republican and then chairman of the House Judiciary Committee, described the process as “one of the most extensive considerations of any piece of legislation” in his nearly three decades on Capitol Hill.
What did Congress find? Ginsburg noted there were more federal objections between 1982 (the previous renewal) and 2006 than during the first 17 years of the act. For instance, Mississippi sought to revive a dual voter registration system. Albany, Ga., proposed a redistricting plan to limit increased black voting strength. Kilmichael, Miss., canceled the town’s election when a large number of black candidates entered the race. After African-Americans won a majority on the school board, a county in South Carolina proposed at-large seats to prevent such an outcome.
These are just a handful of examples of the persistent bad behavior, or why the preclearance provision remains relevant and necessary. Recall more recently in North Carolina the legislature approving voting restrictions that a federal appeals court found “target[ed] African-Americans with almost surgical precision.”
Or as Justice Ginsburg famously put it in her dissent: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” The legacy of Martin Luther King, which we celebrate this weekend, argues for Congress rediscovering those impressive numbers and seeing the task through to completion.
Douglas is the Beacon Journal/Ohio.com editorial page editor. He can be reached at 330-996-3514 or firstname.lastname@example.org.