By Vina Kay
The Supreme Court has struck down a key component of the Voting Rights Act, saying that the coverage formula requiring preclearance of elections changes for southern states with a history of racial discrimination was invalid. “In 1965, the states could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics,” Chief Justice John G. Roberts Jr. wrote for the majority. “Congress based its coverage formula on that distinction. Today the nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.”
This post first appeared on Opine Season after the oral arguments in this case, and argues that the threat of racial discrimination in voting rights is very much real, and not limited to southern states. As the Supreme Court hints, perhaps it is time for Congress to redefine the protection of voting rights to reflect current reality. That reality includes attempts to limit access to the polls across the country, including here in Minnesota where we faced the possibility of a voter ID amendment just last year.
Ever since the oral arguments in the Supreme Court on the constitutionality of Section 5 of the Voting Rights Act, there has been a lot of speculation about the future of this law – most of it negative. “I’d say dead meat,” said my favorite Supreme Court reporter NPR’s Nina Totenberg. That’s a pretty definitive prediction from a veteran Supreme Court reporter. The threat to participation in American elections is big and real.
The Voting Rights Act has been called our most significant civil rights law, changing the foundation of how our country has approached access to the polls. The truth is, our democracy is grounded in structural inequality and racism. In the beginning, most of us would not have had the right to vote for representatives in government. That was only available to white, land-owning men. Even after African Americans technically won the right to vote in 1869, the discrimination of poll taxes, literacy tests, and other forms of voter suppression were the actual experience until passage of the Voting Rights Act nearly 100 years later in 1965. The Voting Rights Act, then, is part of our story as Americans. Through it, we have shown that interrupting a pattern of discrimination and disenfranchisement is possible and within the power of our government.
Section 5 of the Act has been particularly important in addressing discrimination in state elections procedures. It places greater scrutiny on those states that have shown a history of discriminatory practices, and requires “preclearance” by the Justice Department before changes of elections procedures can take effect. That greater scrutiny is what those seeking to end Section 5 find troubling. Times have changed, they argue, and state-sanctioned discrimination at the polls is no longer an issue.
Chief Justice Roberts called out this uneven application of the law during oral arguments: “Is it the government’s submission that the citizens in the South are more racist than the citizens in the North?”
He raises a question worth entertaining. Structures of racism certainly do extend beyond the South, and are not just a part of our history, but part of what we are fighting against right now, today. In 2012, voter ID legislation was introduced in 32 states. Perhaps the Voting Rights Act should be expanded rather than contracted. I wondered this myself during the last election as I worked alongside organizers opposing the proposed voter ID amendment to Minnesota’s Constitution. Even in a state known for its high voter turnout, a serious threat to participation at the polls nearly became part of our Constitution and the fabric of who we are as a state.
Working to defeat the ballot question last November, I heard from multiple communities that have experienced the struggle to make their voices heard in our democracy. The threat of a voter ID requirement would have added to that experience. After first experiencing the loss of home, American Indians were long denied the possibility of participating in the governance of the nation that took over their land. When the Indian Citizenship Act was enacted in 1924, American Indians finally had the right to vote, but held that right alongside the historical tension of having American democracy foisted upon them.
Asian American communities have also experienced exclusion from the voting process. The 1882 Chinese Exclusion Act denied citizenship and voting rights to Chinese Americans. The law stayed in effect until 1943. Not until 1952 were first generation Japanese Americans granted the right to become citizens and vote.
For the recent immigrants who have made the United States home, being told – incorrectly – that they must speak English to vote or that they cannot have an interpreter with them in the polling booth, can determine how they experience democracy. Some immigrants have left dictatorial systems of government and hold dear the promise of being able to freely cast a ballot in their new home country. Having that right called into question is both disheartening and intimidating.
These stories and that of the civil rights struggles of African Americans are grounded in history and present day reality. Those questioning the legitimacy of Section 5 should look more broadly, rather than narrowly at the states under the preclearance rule. If the Supreme Court strikes down Section 5, Congress should take the lead in making the Voting Rights Act stronger. As our country becomes richer in diversity and perspective, we must ensure that all of our voices are included in how we define our communities, our priorities, and our leadership.
Our democracy is founded upon a system that left most of us out from the start. Over 150 years, we have been working to expand the right to participation. What we have is not perfect. Even as demographics change, people of color and American Indians are starkly underrepresented in all levels of public office. Building participation and building political power go hand in hand. And what we are building only gets stronger by holding up each of our voices, as equal players in defining what democracy means.