There is no denying that this nation has come a mighty long way since Bloody Sunday in Selma, Ala., in 1965, when marchers on the Edmund Pettus Bridge, seeking the right to vote, were attacked by police and one of them, John Lewis, almost lost his life. That disgusting display of violence led to passage of the Voting Rights Act, giving the federal government oversight powers that a divided U.S. Supreme Court has said are no longer tenable.
But there is much evidence, some of it cited by Justice Ruth Bader Ginsburg in dissenting from the majority opinion in Shelby County v. Holder, that the past is not as long ago as Chief Justice John G. Roberts Jr. says. Already civil rights advocates, members of Congress and public thinkers are in full-throated debate about where we go from here, now a crucial element of that the law's chief enforcement mechanism, Section 4, has been declared unconstitutional.
The decision is, as Attorney General Eric Holder sees it, "a serious setback for voting rights." But, though some difficult days lie ahead, we should not be dismayed. The federal government still has a role in preserving and protecting voting rights. So, focusing on what remains of the VRA and on the 15th Amendment from which it derives authority, we have to put our hands back on plows prematurely laid down during a long Obama-era siesta.
Perhaps, fittingly, the decision comes in a year when 1963 is being remembered as a pivotal time in the civil rights struggle — from the campaign in Birmingham that saw the arrest of Martin Luther King Jr. and the penning of his "Letter from a Birmingham Jail," to the violent assault on child marchers there to a terrorist church bombing that took the lives of four little girls in Sunday school just days after the March on Washington for Jobs and Freedom and King's "I Have a Dream" speech. That was the year a postal worker turned Baltimore civil rights crusader, William L. Moore, set out on foot to march through the South to Mississippi but was lynched in Alabama. That was the year Medgar Evers, the NAACP's main man in Mississippi, was gunned down just hours after President John F. Kennedy gave a nationally televised address on civil rights.
"Nearly 50 years later, things have changed dramatically. ... Problems remain in these states and others, but there is no denying that, due to the Voting Rights Act, our nation has made great strides," Chief Justice Roberts wrote in declaring Section 4 passe. Yet with this history "still in living memory," as Justice Ginsburg noted, we are not where we ought to be, certainly not at a place where, Justice Antonin Scalia believes, VRA protection is an entitlement that blacks neither need nor deserve.
"These problems have not been consigned to history," Mr. Holder reminds us. "They continue to exist. Their effects are real. They are of today, not yesterday; and they corrode the foundations of our democracy. Our country has changed for the better since 1965, but the destination that we seek has not yet been reached."
Still, Chief Justice Roberts insists that Congress, in reauthorizing Section 4, remains mired in "40-year-old facts having no logical relation to the present day." His "present day" obviously is not the same as the Republican-dominated Congress that reapproved the VRA in 2006 — 98 senators and 398 representatives voting in favor — and the millions who are being blocked from voting.
Back in 1965, Congress singled out six states for special scrutiny — called "pre-clearance" — based on their abysmal track records: Alabama, Georgia, Louisiana, Mississippi, South Carolina and Virginia, "the regions of the country with the most aggravated records of rank discrimination against minority voting rights," Justice Ginsburg wrote. Other areas, including Texas, Arizona and parts of New York and California, were added later because of what she described as "a unique history of problems with racial discrimination in voting."
"Early attempts to cope with this vile infection resembled battling the Hydra," she noted. "Whenever one form of voting discrimination was identified and prohibited, others sprang up in its place. This Court repeatedly encountered the remarkable 'variety and persistence' of laws disenfranchising minority citizens."
For sure, these are not the only places where shenanigans deny ballot access or reduce the impact of the votes of blacks, Latinos, the elderly, the poorly educated and those with checkered legal histories. Through the use of pre-clearance procedures, the Justice Department, which enforces the VRA, has turned back hundreds of vote-suppressing measures.
Chief Justice Roberts — along with Justices Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito — is bothered that some states are subject to pre-clearance while others, regardless of their records, remain "unburdened." He challenges Congress to craft a law that addresses what he refers to as "current conditions." The 15th Amendment, he says, "is not designed to punish for the past; its purpose is to ensure a better future." Going forward, he says, "Congress — if it is to divide the states — must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. It cannot rely simply on the past."
Can that be done? Wade Henderson, who heads The Leadership Conference on Civil and Human Rights, is among the civil rights advocates who says yes. "We have the moral high ground," he insists. His and other groups have pledged to continue legal challenges but also to push Congress to fix what Chief Justice Roberts says is broken. They think that Congress should be so miffed at the lack of respect the Roberts majority accorded them in gutting the VRA that it will craft bipartisan measures to restore the law's enforcement power. They are vowing to take to the streets and the suites.
Like 1963, but with a 21st century arsenal of savvy political strategists and social-network organizing. Newfangled tactics married to the old, reminding us of what that famous son of Mississippi, William Faulkner, said: "The past is never dead. It's not even past."
E.R. Shipp is a journalist who has worked for The New York Times, The Washington Post and the New York Daily News, where she won a Pulitzer Prize. Since August she has been an associate professor and Journalist in Residence at Morgan State University. Her email is firstname.lastname@example.org.