Challenging the 1965 Voting Rights Act
Practical Politics
Even though the Civil Rights Movement of the late 1950s and the 1960s has regularly been called the “moral movement for the soul of America,” and other such lofty names, essentially the movement was about getting the federal and state governments to enforce the laws that protected citizens from abuse by government, or the passage of new legislation in the absence of such effective protection. The movement was about law and law enforcement.
So, the passage of the 1964 Civil Rights Act, and the 1965 Voting Rights Act, have been rightfully seen as the core accomplishments of the movement.
In fact, experts have said that in 1965, elected officials who were Black in the United States numbered around 40 total, and less than half of the African American population was then registered to vote.
Today, there are well over 10,000 Black elected officials in the USA, including a re-elected African American president, and the influence of Black voting strength cannot be ignored.
The Section 5 Preclearance provision of the revised Voting Rights Act has had a great deal to do with that current situation. This is the part of the legislation that monitors nine states regularly for unauthorized changes in their voting procedures which have as their purpose or their consequences, a negative impact on the ability of Black Americans to register and to exercise their voting rights.
This is the section that has created both confusion and relentless consternation among some.
The confusion is demonstrated by the frequently disseminated email that reports that African Americans are the only American group which has to have its voting rights re-authorized by Congress every 25 years. That is, of course, an urban myth. The rights of African Americans to vote is ensconced within the 15th Amendment to the U.S. Constitution and cannot be taken away without a repeal of that amendment (through the passage and ratification of another constitutional amendment).
Amending the Constitution is almost impossible in the modern world. In fact, currently, there are 27 amendments, with 10 of them coming at one time in 1791 (the Bill of Rights). There have been over 11,000 attempts at amending the U.S. Constitution since then, and only 17 more have gotten through.
So, there is virtually no chance that the 15th Amendment will be repealed or modified any time sooner or later. It would take 38 state legislatures to ratify any such attempt, and that simply cannot happen.
The consternation is evidenced by a four-year attempt that may finally be paying off for a southern states’ rights advocacy group out of Shelby County, Ala. That group, along with a cabal of southern senators and congressional representatives, protested the 2006 re-authorization of the Section 5 Preclearance provision as discriminatory and a violation of states’ rights. The U.S. Supreme Court a few weeks ago in November, decided to hear the case.
This will resurrect the moribund old-school civil rights groups like the NAACP, Urban League and others. It is indeed a call to arms to protect one of the cherished triumphs of the Civil Rights Movement and the legacy of Dr. Martin Luther King.
The Court will review whether Congress overreached its authority in re-authorizing Section 5 as a special measure supervisory provision for the nine states-including Georgia, Mississippi, and Alabama, along with most of the old Confederacy and parts of seven others. This is a very, very big issue and a lot of the MLK Day celebrations nationwide in a few months will emphasize it.
It was the preclearance section of the Voting Rights Act which came into play in a big way during the last presidential campaign, as Georgia, South Carolina, Texas, Florida, and a host of other southern states tried to restrict access by Black Americans to the voting booth in order to increase the chances for a Republican victory which failed to materialize.
The Justice Department had to review, disapprove and approve many of those changes, and courts had to review most of the others, based on the Voting Rights Act.
The Supreme Court could declare Section 5 of the Voting Rights Act unconstitutional, but it would have to reverse many rulings of previous Supreme Courts to do so, including Katzenbach v. South Carolina (1966), Bush v. Vera (1996), Shaw v. Reno (1993) and Austin Utility District v. Holder (2009). Either way this goes, there is an important legal-political game afoot, and we would do well to pay close attention.
Freedom requires constant vigilance, and we’d better not forget that.
Professor David L. Horne is founder and executive director of PAPPEI, the Pan African Public Policy and Ethical Institute, which is a new 501(c)(3) pending community-based organization or non-governmental organization (NGO). It is the stepparent organization for the California Black Think Tank which still operates and which meets every fourth Friday.
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