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The Voting Rights Act of 1965 "Gutted" by the Supreme Court: Are We Headed Back to the 1880s?

Updated on October 7, 2018
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ME has spent most of his retirement from service to the United States studying, thinking, and writing about the country he served.


SOMETIMES THIS IS HOW I START MY HUBS on topics like this, but not this time. It is actually the Democrats who I wish to chastise. It was they who were warned by the Supreme Court in 2009, when they had a super majority in Congress, that Section 4 of the Voting Rights Act of 1965 needed to be updated or face the possibility the Act will be invalidated later. The following is based on news reports, mainly from POTUS on Sirius/XM satellite radio, and research on the Internet. Nevertheless, it is a simple story and makes a lot of since.

In reaction to the terrible TV scenes of mayhem Southern police visited on Civil Rights protesters, as well as the murder of a few of these same protesters by Ku Klux Klan members or their sympathizers, Congress got up the nerve to once again implement the intent of the 13th, 14th, and 15th Amendments with laws which had teeth in them to enforce those documents. Congress, back in the 1860s and 1870s did the same thing, only to watch the conservative Supreme Court invalidate almost everyone of the them allowing the South to "rise again" and turn back the clock to pre-emancipation days, minus the slavery; that was replaced with share cropping.

By 1890, the South had regained its former status, with all its segregationist and discriminatory practices, prior to splitting the Nation in two. It took another 60 years for President Eisenhower to enforce the Supreme Court ruling in Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483, on May 17, 1954, and an additional 10 years before the final laws needed to implement the Constitution requirements for Civil Rights, i.e., the Civil Rights of 1964 and the Voting Rights Act of 1965, were passed. Since 1965, Conservatives (notice I did not say Republicans since Democrats have a small contingent of Conservatives who haven't switched parties) have been attempting to role back the implementing laws or by-pass them with other state laws.

Is this latest Supreme Court ruling letting the Conservatives win the contest? No, I don't think so. From what I have learned, most of the Court (Justice Thomas being an exception) believe the Civil Rights Act was, and still may be, proper and that discrimination at the polls still does occur, and further, it may occur at a rate which will still require the continuation of the Act. What five of them did object to is Section 4 of the Act which specifies the model used to implement important sections of the Act. They felt the data used to create the model is outdated and needs to be recomputed to see if the discriminatory environment which led to the original Act still exists..

The Court, in 2009, felt the same way, but instead of invalidating that Section as this Court just did, they let is pass but with a strong warning to Congress that they need to fix it or risk an adverse ruling at a later date. That date arrived at 10 AM, June 25, 2013.



THE SUPREME COURT RULED 5-4 that Section 4 of the Voting Rights Act of 1965 was Unconstitutional. So, what is Section 4, what does it do, and why were the conservative Justices so upset with it.

Ostensibly, Section 4 sets out the formula to be used in determining whether a political entity, be it a state, county, or small municipality, can be considered "covered" and therefore subject to Section 5, which establishes the federal review procedures for any change in voting laws of the covered jurisdictions. It is actually Section 4a which sets out the formula which is:

  • The first element in the formula was whether, on November 1, 1964, the state or a political subdivision of the state maintained a "test or device" restricting the opportunity to register and vote. Examples were given such as requirements for the applicant being able to pass a literacy test or to establish that he or she had good moral character
  • The second element of the formula is if the Director of the Census determined that less than 50 percent of persons of voting age were registered to vote on November 1, 1964, or that less than 50 percent of persons of voting age voted in the presidential election of November 1964.

Section 4a also establishes "remedies" for those found to meet the above two elements. They are:

  1. The first of these targeted remedies was a five-year suspension of "a test or device," as a prerequisite to register to vote.
  2. The second was the requirement for review, under Section 5, of any change affecting voting made by a covered area.
  3. The third was the ability of the Attorney General to certify that specified jurisdictions also required the appointment of federal examiners.

Section 4 sets out other remedies as well in Sections 4e and 4f which address discrimination based on education level attained or if they belong to a "language minority", such as voters in Puerto Rico.

The Supreme Court struck down Section 4 of the Voting Rights Act because the majority, consisting of Chief Justice John Roberts, and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito, ruled in Shelby County v. Holder that “things have changed dramatically” in the South in the nearly 50 years since the Voting Rights Act was signed in 1965. Consider the wording of the two elements that must be proven and you can see why these Justices felt they were outdated.

Now, Congress, in 1970, 1975, 1982, and again in 2006, reauthorized the Act; the last two for 25 year periods, knowing full well what the formula was. In fact, in 1975, they modernized the elements to be based on voter participation in November 1972. At the same time they expanded the scope of "test or device" to include the practice of providing election information, including ballots, only in English in states or political subdivisions where members of a single language minority constituted more than five percent of the citizens of voting age.

"Times have changed and so should the law" is the majority's rational for finding this section unconstitutional. Underpinning all of this, however, is the Justices distaste for the Federal government treating states differently which they believe is on the razor's edge of being unconstitutional itself, via the 10th Amendment. But, they understand that the 13th, 14th, and 15th Amendments give the Congress the authority to make such laws in order to enforce their provisions. Consequently, it seems they are going to hold the Voting Rights Act under close judicial scrutiny to make sure it is still needed.

They said as much in 2009 when, in Northwest Austin Municipal Utility District No. 1 v. Holder, 557 U.S. 193 (2009), Chief Justice Roberts said "The South has changed. The evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance..." In other words, Roberts strongly suggested that "Congress, review what you have wrought and make sure it is still applicable or the Voting Rights Act may not survive the next challenge."

Where the 2009 decision took aim at Section 5, today's decision actually struck down Section 4, which the former section needs to have active for it to be enforceable. The Court said it did not strike down the act of Congress “lightly,” and said it “took care to avoid ruling on the constitutionality of the Voting Rights Act”. In fact, referring to their 2009 decision, the Court chastised Congress by saying “Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare [Section 4] unconstitutional. The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance.” And there you have it.

The Voting Rights Act has recently been used to block a voter ID law in Texas and delay the implementation of another in South Carolina. Both states are no longer subject to the preclearance requirement because of the court’s ruling on Tuesday. Nevertheless, Roberts wrote, “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions,”.


FIRST OF ALL, EACH OF THE JURISDICTIONS who were found to have made changes to their voting laws with the purpose of hindering a class or classes of voters in their ability to exercise their right to vote, can now do so again. It will be interesting to see how many will take the opportunity now that they are unimpeded.

To give this section some context, know that Canada has no restriction on who can vote other than the voter's signed statement (even to register at the time of voting) that are who they say they are and some proof they live at the residence they say they do, such as an electric bill or government correspondence. In fact, they are experimenting, on a national level, on-line voting. Also know that Canada has minuscule occurrences of voter fraud and if any is found, it is quickly prosecuted.

The evidence that voter suppression is alive and well in America, as Chief Justice Roberts confirmed, can be found at this Wikipedia entry on attempts to restrict voting. So the need for a revamped Section 4 is clearly, to many of us, still needed. To be fair, Roberts has his doubts this is actually true, but, what he wants is for those who think so to prove it with more current statistics. Personally, I am one of those who is certain of the continued need for Section 4, but nevertheless agree with Chief Justice Roberts for the need for new data. It is a shame the Democratic Congress didn't take his warnings seriously and develop the necessary information when they had the chance; for I believe serious damage to civil and voting rights is going to result from the Supreme Court's ruling; a ruling I think Roberts had no other choice but to make.

Assume for the moment that this data Chief Justice Roberts is looking for is available and it supports a continuation of Section 4, updated to accommodate the new information. Given that, what is a possible, or maybe even probable outcome? In my considered opinion, the outcome will not be good for at least three years. For the next two years, until Dec 2014, Congress will probably do nothing other than argue with itself, if they do anything. The action is going to come in the campaigning for the 2014 election, especially if, in the intervening time, various election jurisdictions begin the process of rolling back the clock in terms of restricting certain classes of people from exercising their right to vote.


TO THE SURPRISE OF MANY, PERHAPS, I voted YES to my first poll question. I didn't vote that way because I disagree with the Voting Rights Act (VRA), quite the contrary, I think the VRA is absolutely essential to protect minorities and the elderly from the continued encroachment of Conservatives on their ability to exercise their right to vote. Of course, Conservatives don't see it this way, instead they see the VRA as a federal take-over of a state's ability to regulate federal elections in their state and that the Court simply set things right.

So, if I agree with the need for the VRA, why would I vote YES in my poll? Because America, the Independent and Democratic portion anyway, needs a wake-up call as to what is going on; to stop the slide back to the 1880s. It is clear from Roberts' comments in the this case, and others on the same subject, that they actually believe there is a reasonably good chance there is no need for the VRA anymore, that everything is hunky-dory regarding race relations in America. Therefore, now is the chance for those who still care about civil rights in this country to do something; but if they don't, or at least don't make a real try to correct this ruling in the way Justice Roberts suggested, then maybe America deserves to return to the days of Jim Crowe.

Consequently, the stage is set for a very interesting five years, for I think it would be safe to assume that if there is going to be objections to reinstating Section 4, it will come from conservative rather than middle-of-the-road progressive or liberal candidates. And, one would hope the progressives and liberals will take up the standard and carry the question to the public in this upcoming election cycle.

If they do, then we will be able to take the measure of America and Americans as they go to the polls to vote, for in many districts, I feel certain the choice is going be between a candidate who does not want to continue protecting voting rights, living in a false world that there is no problem (or, worse yet, it is the conservatives who are being disenfranchised) and one who sees the world as it really is and wants to do something about it again.




15.5 points, Whites over Blacks
6.1% points Whites over Blacks,
3.9 points, Blacks over Whites
10.3 points, Whites over Blacks

Current Population Survey


THE CHART AND TABLE ABOVE give a snapshot of how things are today. So, if the Democrats are smart, and they often haven't been, they would push hard, both in Congress and on the election trail to pin Conservatives down in their opposition of reinstating the VRA. If Conservatives actively oppose Civil Rights, as this will be seen, it will bring out the Black and Latino (who are already out because Conservatives will have killed the Immigration Bill) voters in numbers like American has never seen. If that happens, Conservatives could be in real trouble at the polls.

By the way, don't take the above statement as proof the VRA is no longer needed simply because it is obvious the previously disenfranchised Americans now have a much better ability to vote. It was the VRA which has allowed this kind of turn-out to happen and it is this potential of this kind of turn-out that has led to so many attempts to change voting laws that, through the VRA, the federal government has found necessary to void in order to prevent the disenfranchisement of a segment of American society. And, it is the VRA, if it is reinstated, that will continue preventing voters from being disenfranchised.

In order to be able to pass a new VRA in the next session of Congress, Democrats need to retake the House and improve their position in the Senate. Democrats need to switch seventeen U.S. House seats to their side in order to regain control in that body. Now, there are 435 House seats which go up for "grabs" in 2014. To the great shame of our American system, 388 are, because of gerrymandering, considered "safe". In other words, the Party in power at the time of the last census legally rigged the election districts such that their Party is a virtual shoo-in for the next 10 years for the House seats from that state. Only 47 seats are "in play", 25 Democratic and 22 Republican, and possibly good change hands. That means the Democrats must retain all 25 of their seats and win over 17 of the 22 (78%) Republican ones; that is one tall order, especially during a mid-term elections!

It has happened before, but rarely. If it is going to happen again, this next election may be the one where it can take place for the stars appear to be coming into alignment. Not only is there the VRA issue, but you have the death of Immigration Reform, as well as an improving economy and declining unemployment. Yes, there are those pesky scandals swirling around Obama, of course, but 2014 is many months away and some of them are resolving themselves, e.g. the IRS scandal which is vaporizing in front of them. As for Bengasi, I haven't heard much about that lately; can the opposition successfully raise it again a year from now?

Having said all of that, it has only been a week since the Voting Rights Act of 1965 was effectively struck down by the Supreme Court, so at best, I am speculating on probable scenarios that may play out. It is an extremely serious issue which absolutely deserves the attention of the Nation and action from Congress. Only time will tell what will actually happen.



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© 2013 Scott Belford


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