The cost of America’s first black president

By Janai S. Nelson
June 28, 2013

President Barack Obama addresses supporters at his election night victory rally in Chicago, Nov. 7, 2012. REUTERS/Adrees Latif

Barack Obama, America’s first black president, can be credited with many milestones — a comprehensive federal healthcare bill, taking down the world’s most wanted terrorist, signing the Fair Pay Act for gender pay equality, to name a few.

The obliteration of the Voting Rights Act, however, was certainly unintended. Despite the Justice Department’s zealous defense of the act’s constitutionality in Shelby County v. Holder, a divided Supreme Court voted 5-4 to strike down Section 4, the core of the act, on the grounds that it is not justified by “current needs.” Substituting its judgment for Congress’s, the court ignored a more than 5,000-page record of “current needs” that Congress relied on in 2006 when if reauthorized, with overwhelming support, the act’s challenged provisions.

The Shelby County decision is the latest strike in a multi-front movement to restrict the vote precipitated by Obama’s historic election. In the “post-racial” fog that rolled in with the 2008 elections, there have been sweeping attacks on minority voter participation. Most recently, Texas has waged high-pitched battles defending its discriminatory redistricting plans, Florida passed unprecedented voter registration restrictions and Republican-led state legislatures across the nation have passed a contagion of voter ID laws.

The minority voting power that helped elect Obama, nonetheless, seems to have instigated a willful amnesia among the court’s conservative majority. Despite this flurry of recent voting restrictions, the court found that there is no current justification for the act’s federal oversight of mostly Southern states with histories of virulent racism. Instead, the court ruled Tuesday that the act’s “coverage formula” — which designates which jurisdictions are to be covered by the law — violated the Constitution by treating some states differently than others.

This newfangled equal treatment of states theory trumped the equal treatment of voters principle embodied in the Voting Rights Act and in the 14th and 15th Amendments. While many states may not treat all eligible voters equally, some have been undeniably worse at it than others.

What do we lose with Tuesday’s decision? Without the federal oversight formula intact, the Voting Rights Act has lost both its muscular force to prevent states and municipalities from enforcing discriminatory election laws and its subtler deterrent effect. States with a proven record of seeking to disenfranchise eligible voters will no longer confront the obstacle of a watchful Justice Department. Jurisdictions with a history of voting discrimination, many with recent records of election law violations, can regulate elections unleashed with no expectations that they will maintain the hard-fought racial progress that the Voting Rights Act’s anti-retrogression standard enforced.

Almost tongue in cheek, Chief Justice Roberts, writing for the majority, invites Congress to craft new legislation to replace the coverage formula he struck down. By punting to Congress, however, the court has kicked the can down a road to nowhere. Today’s Congress, wracked by partisan division, has been largely ineffectual on crucial social issues. There is little reason to think that this critical issue, with its deep ideological and partisan dimensions, will be any different.

Nonetheless, today’s Congress owes it to the 89th Congress, which passed the Voting Rights Act in the shadow of Jim Crow, and the Congresses that reauthorized Section 5 four times since, to find a solution that protects against the venomous voting discrimination that has characterized most of American history.

Without the force of these key provisions, we run the risk of inviting discrimination in voting on a scale that we haven’t seen in nearly 50 years.

We will know in the months to come whether our lawmakers will rise to the challenge the court has set. It is now a test of the citizenry to demand from our elected officials the justice we have been unable to obtain from the Supreme Court.

Congress must devise a constitutional and comprehensive solution to protect minority voting strength from backsliding to days of old. States can play an important role in protecting our democracy by legislating against voting laws that have a disparate impact on minority voters and lack sufficient justification.

The Shelby County decision is a gauntlet that Congress and states can perilously ignore out of partisan division or take up for patriotic interests to protect our democracy. If, indeed, we have paid for our first black president with rollbacks on the very legislation that produced the unique phenomenon of his election, we must ask whether we’ve received a sufficient return.

That question will depend, in part, on whether efforts to bridge the racial gap in education and economic equality will continue to be blocked by a recklessly divided Congress and sidestepped by the Supreme Court (see Monday’s decision on affirmative action in Fisher v. Texas) or if Congress can enact a new federal oversight formula that fairly protects the equality of all voters.

If not, the price our democracy has paid in gutting the most effective piece of civil rights legislation in history is one we simply cannot afford.


ILLUSTRATION (Insert): Matt Mahurin




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