Gutting the landmark civil rights legislation

By Morgan Kousser
June 26, 2013


The Supreme Court’s Shelby County v. Holder decision on Tuesday essentially cast aside the key component of the nation’s most important civil rights legislation.

The five “conservative” justices castigated Congress for putting too much emphasis on history by failing to update the “coverage formula” in Section 4 of the landmark Voting Rights Act of 1965.

Section 4 specifies which states and local jurisdictions must “pre-clear” with the Justice Department or the Washington district court all changes in election laws – anything from adding voter ID regulations to redistricting. Areas now subject to this federal oversight have had a substantial history of voter discrimination.

Chief Justice John Roberts, in writing for the 5-4 majority, conceded that the Voting Rights Act is largely responsible for a decline in blatant voting racial discrimination efforts. Yet he declared the federal oversight program “unconstitutional” on the grounds that it did not reflect “current conditions.” Instead, he invited this most dysfunctional of Congresses to “draft another formula.”

But the chief justice is wrong.

Congress did not update the formula because it knows it still works. The comprehensive database that I assembled proves this. Consider, from 1957 through 2006, almost 94 percent of all voting rights minority lawsuits, legal objections and out-of-court settlements occurred in jurisdictions now subject to federal oversight under the Section 4 formula.

My database, the largest assemblage of voting rights actions now available, is largely based on the same evidence presented to Congress. I have compiled many lists, including more than 4,000 voting rights “actions” — legal cases, Justice Department preclearance incidents and numerous out-of-court settlements that reduced discrimination against minorities.

Congress knew of most of this material when it reauthorized the Voting Rights Act in 2006, with a stunning, near unanimous vote of 98-0 in the Senate and 390-33 in the House.

This database material refutes Roberts’ contention that the information Congress reviewed during the 2006 reauthorization “played no role in shaping the statutory formula” that was renewed in that legislation.

My database shows that the number of legally proven voting rights violations does not reflect the true extent of discrimination. The court’s earlier decisions have actually made it harder for the Justice Department to file objections. The resulting dearth of objections in turn now bolsters the argument that Section 5 is no longer necessary.

In his ruling, Roberts paints a rosy picture of decreasing inequality since the Voting Rights Act first passed in 1965. But my database challenges this position, revealing how voting discrimination efforts have changed and morphed over the years.

The data suggests changes in the coverage formula that might be adopted — in the unlikely prospect that this stalemated Congress can overcome partisan interests and renew the nation’s commitment to equality. This would protect what Justice Ruth Bader Ginsburg, in her ringing dissent Tuesday, called “the most fundamental right in our democratic system.”

In her dissent, Ginsburg meticulously detailed recent examples of blatant discrimination against minorities in election laws. She noted that Congress held 21 hearings and considered 15,000 pages of legislative record before renewing the federal oversight formula in 2006.

Yet Roberts appeared to blithely assert — without examination — that Congress’s 2006 decision to continue using the formula in determining which jurisdictions should be subject to federal oversight could not have been based on this mountain of evidence.

My database, however, shows that Congress acted wisely because it knew that the formula works. Of 3,874 voting rights actions from 1957 through 2006, 3,636 — or 93.9 percent — came from jurisdictions covered under the Section 4 formula. Many depended on the coverage formula because they were based on Justice Department objections, or drew “more information requests” or lawsuits to enforce Section 5.

Suppose we look instead at cases and consent decrees filed under Section 2 — which can be filed anywhere in the country, in areas not subject to federal jurisdiction as well as in covered jurisdictions. I have identified 1,244 Section 2 actions from 1957 through 2006 — and fully 83.7 percent occurred in the jurisdictions subject to federal oversight.

In addition, the rate of discriminatory actions struck down has been far higher in the covered jurisdictions subject to federal oversight. Minorities won their voter discrimination suits in 88.4 percent of Section 2 cases and settlements in covered jurisdictions, but only 58 percent in districts not subject to federal oversight.

On Roberts’ second point, the chief justice may be correct in emphasizing the “pervasive” and “flagrant” voting discrimination that Congress addressed in 1965. But he ignores the fact that there were only 36 successful voting rights actions — where minorities were able to strike down or prevent a discriminatory change in voting laws — in the seven years between the 1957 Civil Rights Act and the passage of the Voting Rights Act in 1965.

Compare this, for example, to the 462 successful cases, objections, and settlements (422 from covered jurisdictions) in the seven years before the 2006 renewal of the Voting Rights Act.

At least some of the voting rights cases in the 21st century — including, for example, those involving felon disfranchisement, voter identification laws and statewide anti-minority racial gerrymanders — have had political effects comparable to the literacy tests and poll taxes of the pre-1965, Jim Crow period. No wonder Roberts did not discuss the nation’s historic record in detail.

As the below graph on Section 5 cases and objections shows, even though racial discrimination was more pervasive at the beginning of the period than at the end, the number of Section 5 objections in the first five years under the Voting Rights Act was small – only 24, compared to 63 in the five years before the 2006 renewal.

The pattern on the graph demonstrates dramatically how dependent the number of cases and objections was on the tenor of decisions by the Supreme Court and legislative changes by Congress. In essence, the Supreme Court tied the hands of the Justice Department — and then announced that it had lost its punch.

For example, decisions favorable to minorities, such as the 1969 Allen v. Board of Elections case and the 1982 amendments to the Voting Rights Act, made it easier to crack down on discrimination. After these rulings, Justice Department objections to discriminatory efforts soared.

But decisions that restricted Justice Department discretion, such as the 1993 Shaw v. Reno ruling, which made it more difficult to draw legislative districts that could elect minorities, and the 2000 Reno v. Bossier Parish, which redefined “intent” and which Congress overturned in 2006, caused the number of objections to plummet.

The database statistics also reveal significant facts and trends about minority voting rights. Because statewide cases — such as the Texas 2012 redistricting and voter identification cases, in which I testified — attract so much attention, the public may not realize that the vast majority of voting rights actions focus on local jurisdictions — 3,628 or 92.2 percent of the 3,934 actions from 1957 to today in which minorities were successful.

These low-profile cases are most likely to be adversely affected by the Supreme Court’s suspension of Section 5 preclearance requirements. It may be that a school board or city council will redistrict an African-American officeholder out of his seat — as a city in Shelby County did in 2008. Or a county governing body may shift from single-member districts to at-large elections — as Osceola County, Florida, did after the first Latino was elected to the county board in 1996.

Without Section 5, voters will have to file an expensive lawsuit — the Osceola County case cost $2 million and took several years to litigate — rather than get a quick, inexpensive decision from the Justice Department. Civil rights organizations lack the money and resources to sue every jurisdiction that makes discriminatory changes, and minority rights will go backward.

Surprisingly, neither the majority nor the minority opinion Tuesday brought up a significant demographic shift: Latinos are increasingly turning to the Voting Rights Act for help. Congress, however, is no doubt aware of this.

As the Latino population increases, discrimination — and the struggle against it — has changed. Consider that from 1957 to today, African-Americans were involved in 77.2 percent of voting rights actions in which the race of the party discriminated against could be determined. But this statistic disguises the shifting demographics. For example, from 1957 through 1990, 88.5 percent of the actions involved African-Americans, but from 1990 to the present, only 62.2 percent did. Latinos are responsible for almost all of this difference.

This demographic shift in the subjects of discrimination also shows the way for a possible transformation in coverage. Under the law as amended in 2006 and interpreted by the Supreme Court in the 2009 Northwest Austin case, local jurisdictions were allowed to “bail out” of coverage if they had no voting rights violations for 10 years. An increasing number of jurisdictions did just this.

Congress, if it can unite behind this effort, could now rewrite Section 4 to grant automatic bailouts to jurisdictions with clean records for such a period, as well as automatic 10-year “bail ins” for jurisdictions, including states, that are convicted of voting rights violations.

Congress must also move from a historical basis of coverage toward a sociological framework — to consider Latinos as well as other minorities. For any substantial minority group, especially one that is expanding in numbers or influence, may be perceived by the local political establishment as a threat. Congress should realize that electoral discrimination in such areas is likely and needs special attention.

Basing a new coverage scheme on the current percentage of the largest minority group in a county would update Section 4 by basing it on current demographic data — and continue the shift from the original focus of the Voting Rights Act almost exclusively on African-Americans to the more recent shared attention of the flexible Voting Rights Act on Latinos, as well.

Counties in which any minority was 20% or more of the voting-age population in 2000


Section 5 has served the country well. It continues to work well since the framework it lays out to determine which jurisdictions require federal oversight is, my database shows, far more precise than the chief justice’s caricature of it. We must all mourn its demise.The map delineating counties in which a single minority group made up 20 percent or more of the voting-age population in 2000 reveals what the sociological aspect of a new coverage scheme might look like. Compare this with a map that shades counties in which at least one voting rights action took place between 1957 and 2006. While the 20 percent minority counties do not overlap with counties with voting rights violations as well as does the coverage scheme that the Supreme Court outlawed in the Shelby County case, it at least answers the chief justice’s call for an updated formula.

But a more practical, less ideological and more quantitative view of the Voting Rights Act’s past than the one Roberts presented on Tuesday may provide a guide to future congressional action and a strong piece of legislation for the 21st century.



PHOTO (Insert B): Supreme Court in Washington. REUTERS

PHOTO (Insert C): Representative John Lewis (D-Ga.) (L) and Rev. Al Sharpton (2nd L) attend a rally for the Voters Rights Act in front of the Supreme Court in Washington, Feb. 27, 2013. REUTERS/Gary Cameron

PHOTO (Insert D): President Lyndon B. Johnson talking with Martin Luther King Jr. in the White House. Courtesy of LBJ Presidential Library

PHOTO (Insert E): John Lewis (on right in trench coat) and Hosea Williams (on the left) lead marchers across the Edmund Pettus Bridge, where Lewis was brutally beaten by police, March 7, 1965. REUTERS/Library of Congress/Courtesy Representative John Lewis


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