It would be troubling — though perhaps fitting — if Alabama, the state that gave us the Voting Rights Act in 1965 because of its opposition to providing African-American citizens the ability to register and vote, became the state that would end a key part of the act. It could happen, but it shouldn't — and won't if the Supreme Court recognizes the significance of ensuring that history does not repeat itself.
Wednesday, the Supreme Court will hear Shelby County, Alabama v. Holder, a challenge to Section 5 of the Voting Rights Act. The act has two primary provisions: Section 2 is permanent and prohibits race discrimination in voting; Section 5, a temporary provision, requires periodic congressional reauthorization. What Section 5 does is very important. It is both prophylactic and preventive and requires "covered jurisdictions" to get federal approval (known as "preclearance") of voting changes before they can implement them. These changes can range from elaborate redistricting to the mundane moving of a polling place across the street. Regardless, the VRA requires the jurisdiction to submit the change to either the U.S. attorney general or the U.S. District Court for the District of Columbia for approval prior to implementation. Alabama is one of the originally covered Section 5 jurisdictions.
In March 1965, more than 600 marchers embarked on a journey to walk from Selma to Montgomery, Ala., to spotlight the entrenchment of voting disenfranchisement of and belligerence toward African-Americans. On Sunday, March 7, the marchers barely reached the Edmund Pettus Bridge before law enforcement officials beat and tear-gassed the people (including children) who bravely attempted the march.
After "Bloody Sunday," Congress passed the Voting Rights Act of 1965 to address the widespread state-sponsored shenanigans surrounding the right to vote, such as poll taxes, literacy tests, closure of registration sites, and acts and threats of violence surrounding voter registration and participation, all of which remained rampant throughout much of the country, especially in the South. President Lyndon B. Johnson proclaimed the Voting Rights Act "one of the most monumental laws in the entire history of American freedom." In August 1965, less than five months after the Edmund Pettus incident, he signed it into law.
Many of the outlawed acts of the past have comparable companions in this new millennium. Poll taxes are the forefathers of voter ID laws, and the old literacy tests are similar to proof of citizenship laws. These contemporary methods of voter suppression may not be as overt as George Wallace standing in the schoolhouse door or Bull Connor refusing to register African-American citizens to vote, but the impediments to voter registration and voter participation are very much the same in intent and impact. Section 5 serves as a valuable tool to thwart and deter discriminatory voting practices.
Opponents to Section 5 argue that the act is discriminatory toward the states it covers and infringes on those states' right to govern. This argument is an echo from latter days and essentially proclaims that the federal government should leave jurisdictions to themselves and not interfere with state laws, including those that affect the right to vote. Indeed, these claims have striking echoes to a darker time in America's history. In the 1960s, Governor Wallace of Alabama declared, "Segregation now, segregation tomorrow and segregation forever," later explaining that he should have said, "States' rights now, states' rights tomorrow, states' rights forever." Current Texas Governor Rick Perry recently proclaimed that a Section 5 objection to its voter ID law served as "a clear violation of the 10th Amendment" and the state's "right to make sovereign decisions."
States, however, do not have the right under the 10th Amendment to disenfranchise eligible citizens. The federal government has the power to constitutionally protect the right to vote though its 14th and 15th amendments to the U.S. Constitution. The protection that Section 5 provides is very important to continuing the progress that has been celebrated over the past 50 years.
Today, jurisdictions covered under Section 5 are demonstrating their willingness to listen to the disturbing echoes of the past and make it harder for some citizens to register and vote by passing restrictive voting laws that could take us backward when it came to the electoral progress of minorities. Hopefully, the Supreme Court will not allow history to repeat itself.
Gilda R. Daniels is an associate professor at the University of Baltimore School of Law. Her email is email@example.com.