U.S. Supreme Court Removes Key Enforcement Provision

By Alex Mikulich, Ph.D.

On June 25, 2013, the U.S. Supreme Court effectively gutted the enforcement provision of the 1965 Voting Rights Act in Shelby County, Alabama v. Holder, Attorney General et al.  In the words of Congressman John L. Lewis, who risked life and limb in the struggle for Civil Rights, the Court struck a “dagger in the heart” of the Voting Rights Act. [1]

When he signed the Voting Rights Act into law, President Lyndon Johnson described it as “a monumental law in the history of American freedom.” [2]

Given how African Americans and many others suffered intimidation, ridicule, violence, and even death in the historic struggle for Civil Rights and equality, President Johnson’s description of the Voting Rights Act endures.

Soon after its 1965 enactment, nearly one million African Americans registered to vote.  Whereas there were three hundred black elected officials in 1965, today almost ten thousand elected black public officials serve at every level of government from city councils and school boards, to state and congressional seats, judicial positions, and even the presidency.  Yet there are no African Americans in the U.S. Senate today, and growing racial inequality remains a stain on the nation’s conscience. [3]

The majority opinion, written by Chief Justice Roberts, notes correctly that since the Voting Rights Act was passed in 1965, “African American voter turnout has come to exceed white voter turnout in five of the six States originally covered by Section 5, with a gap in the sixth State of less than one half of one percent.”  The Court’s majority opinion makes this point to argue that conditions have changed since 1965, such that Section 5 of the “Act imposes current burdens and must be justified by current needs.”

The dissenting opinion, written by Justice Ginsburg and joined by Breyer, Sotomayor, and Kagan, unravels the faulty reasoning of the majority:

In the Court’s view, the very success of Section 5 the Voting Rights Act demands its dormancy.  Congress was of another mind.  Recognizing that large progress has been made, Congress determined, based on voluminous record, that the scourge of discrimination was not yet extirpated.  The question this case presents is who decides whether, as currently operative, Section 5 remains justifiable, this Court, or a Congress charged with the obligation to enforce the post-Civil War Amendments “by appropriate legislation.”  With overwhelming support of both Houses, Congress concluded that, for two prime reasons, Section 5 should continue in force, unabated.  First, continuance would facilitate completion of the impressive gains thus far made; and second, continuance would guard against backsliding.  Those assessments were well within Congress’ province to make and should elicit this Court’s unstinting approbation.

The dissenting opinion notes how the majority recognized that “voting discrimination still exists; no one doubts that.”  Yet against that reality, the dissenting opinion laments, “the Court today terminates the remedy that proved to be best suited to block that discrimination.” 

Indeed, the 1965 Voting Rights Act was successfully utilized in 2012 to block partisan voting laws designed to suppress minority voting in states covered by Section 5 (Texas, Florida, and South Carolina) and not covered (Ohio, Wisconsin, and Pennsylvania). 

The Court’s decision paves the way for an onslaught of voter restrictions designed to restrict participation of voters of color and others who may be poor, while having little effect on voter fraud. 

Texas, Mississippi, Alabama, and North Carolina are already working to enact new ballot restrictions. Is it any accident that these laws are being pushed at a time where our country is examining a potential pathway to citizenship for some 11 million immigrants, and statistics are showing an increase in voter participation from communities of color?

As the United States Conference of Catholic Bishops recognize in their response to the Court’s decision, voting restrictions violate Catholic Social Teaching regarding freedom of civic participation and responsibility.

Yet commentary and rhetorical re-affirmation of the Voting Rights Act will not be enough.  All people of faith and goodwill must call upon Congress to enact an effective enforcement provision to protect voting rights across the entire nation.  We cannot fail to uphold this “monumental law” in the struggle for American freedom and equality.

1. “John Lewis on the Voting Rights Act,” in the Huffington Post, June 25, 2013
2. President Lyndon Johnson, “Remarks in the Capitol Rotunda at the Signing of the Civil Rights Act," August 6, 1965, quoted in F. Michael Higginbotham, Ghosts of Jim Crow: Ending Racism in Post-Racial America (New York University Press, 2013, p. 170). 
3. See F. Michael Higginbotham, Ghosts of Jim Crow: Ending Racism in Post-Racial America (New York University Press, 2013), p. 170 for these facts and more about enduring systemic racial inequality.
4. See Alex Mikulich, “The Real Fraud in ‘Voter Fraud’” JustSouth E-newsletter Number 21, August 2012.
5. United States Conference of Catholic Bishops, “On Supreme Court Decision on Voting Rights: Participation In Political Life Is a Right And Moral Obligation State U.S. Bishops".