The Regression of the Voting Rights Act in the Supreme Court from Katzenbach to Shelby
“May the [Goddamndest, Toughest Voting Rights Bill] please the court”?:
The Regression of the Voting Rights Act in the Supreme Court from Katzenbach to Shelby
The Civil Rights movement of the 1950s and 1960s achieved incredible advancements for the African American community in the United States culminating in what is viewed as the movement’s crowning achievement, the Voting Rights Act of 1965 (“VRA”). C. Vann Woodward famously referred to this period as the “Second Reconstruction” which ended the era whereby “redeemers who overthrew [the first] Reconstruction and established ‘home rule’ in the Southern states conducted their campaign in the name of white supremacy.”1 The VRA was central to the Second Reconstruction period because it extended the right to vote to African Americans who had endured various mechanisms and devices designed to disenfranchise them from their right to vote, particularly in the southern states. Although the African American struggle for political and social freedom in the United States had achieved the Emancipation Proclamation, the 13th, 14th, 15th, 19th, 24th Amendments, and the Civil Rights Act of 1964, the right to vote was still being obstructed by white supremacists who were intent on maintaining the segregationist hegemonic rule. When southern racial violence in rural Alabama sparked national outrage, President Johnson told his newly appointed Attorney General Nicholas Katzenbach “I want you to devise the goddamdest, toughest voting rights bill that you can devise.”2 Consequently, when President Johnson addressed a joint session of Congress on March 15, 1965, he said “there is no Negro problem … there is only an American problem”, he envisioned the VRA as the conclusive chapter in the black struggle for the vote.
The VRA’s positive effects on African American voting, particularly in the south, were apparent within a few months of its signing by President Johnson. Although many of the law’s provisions were temporary and required subsequent reauthorizations by Congress beginning in 1970, the bill routinely received legislative support despite attempts to block reauthorization by Republicans in the Nixon and Reagan administrations. Furthermore, despite the law’s significant exertion of congressional statutory power to enforce the Constitution, the Supreme Court affirmed the VRA’s key provisions in the first decade of its existence. However, as was the case with the first reconstruction period, the progress towards civil rights and racial equality provoked white backlash that eventually gave rise to an ideological shift resisting these advancements. This took the form of a colourblind individualistic ideology that became apparent in the decisions from the ultra-conservative Reagan-era Supreme Court. The VRA eventually devolved into an ineffective and unenforceable law that fell victim to white backlash. This essay will argue that although the VRA was repeatedly reauthorized by Republican and Democratic Congresses, the slow erosion of the law, particularly section 5, through judicial review was caused by the individualistic colourblind ideology of Reagan-era conservatism. This led to white backlash against policies of racial justice as the interests of minority communities and the majority-white political hegemony governing the United States no longer converged. By following the history of the VRA from its inception through its paralysis in Shelby v. Holder (2013), this essay examines why Johnson’s “goddamdest, toughest voting rights bill” didn’t please the court.
History of Voting Rights
In the immediate aftermath of the Union’s defeat of the Confederacy, the United States Congress enacted a host of legislative measures that were intended on codifying male suffrage that incorporated free blacks and the recently emancipated slaves. To accomplish this, Congress passed the Military Reconstruction Act of 1867 which allowed states that had seceded to the confederacy to obtain readmission to the Union if they accepted the post-Civil War constitutional amendments.3 This allowed the Union to pass and ratify the 14th amendment in 1868 which gave conferred citizenship upon blacks. Further, the 15th amendment, which was ratified in 1870, provided citizens (conferred upon blacks in the 14th amendment) with the assurance that their right to vote. Amendment XV, Section 1 stated that the right to vote “shall not be denied or abridged … on account of race, colour, or previous condition of servitude.”4 Importantly, Section 2 of the Amendment provided Congress with the right to enforce Section 1 “by appropriate legislation”, known as the enforcement clause.5 Moreover, the Supreme Court recognized that “the political franchise of voting … is regarded as a fundamental political right, because preservative of all rights.”6 Despite the defeat of the Confederacy, Amendments XIV and XV to the Constitution, and a jurisprudential acknowledgement that the right to vote was fundamental to all other rights, Southern whites fervently worked to regain political power and suppress the exercise of the newly established constitutional right to vote for black males. The disenfranchisement of black voters in the United States was eroded almost as rapidly as it began leading W.E.B. Dubois to observe that “the slave went free; stood a moment in the sun; and then moved back again toward slavery.”7 This slave-like structure of race-based subordination, known as Jim Crow, entrenched the power of southern white supremacists who collectively held the levers of political power; it would remain in place for nearly a century after the Emancipation Proclamation.
For nearly one hundred years after the Civil War, the southern states adopted a series of seemingly race-neutral laws, customs, and practices around voting which were selectively applied with the intent of disenfranchising the African American voter. Mississippi was the earliest state to do this, adopting into its post-Civil War constitution some of the most severe practices of black voter disenfranchisement through legal mechanisms such as the “grandfather clause.” The clause intentionally circumvented the equal access to voting provided by the 15th amendment by stipulating that voting eligibility required a voter to prove that their grandfather had voted before the Civil War—a provision which disqualified all blacks who lacked suffrage prior to the war.8 In other states, blacks were barred from voting if it was determined that they had committed a crime which could include small offences such as vagrancy, a charge for being unemployed.9 In Alabama, the county board of registrars who had control over the voter registry, in collaboration with the Supreme Court of Alabama, created a government form to determine the eligibility of voters. While the 1902 form was only one page long ending with an oath, the 1950 form had grown to four pages requiring “the applicant to disclose facts that went beyond the qualification for registration.” In some cases, six questions pertained to loyalty as well as several questions about the “duties and obligations of citizenship.”10 In other states, devices such as literacy tests, poll taxes which could be cumulative, all-white primaries and reading tests were used to prohibit black voters from exercising their right to vote.11 These devices were pragmatic mechanisms through which southern governments could accomplish their broad goals to bar blacks from voting because they were not written in explicit race-based language. Further, their power relied on the broad discretionary enforcement power that states generally allocated to local registrars which permitted selective enforcement of the laws on the basis of race-based prejudices. As Brian Landsberg explains in Free at Last to Vote, the registration system in Alabama was discriminatory in its intent because “it permitted the Board of Registrars great latitude in deciding whom to register and whom to reject … [which] facilitated race-based registrar discrimination, administered by untrained officials who owed their position to a segregationist governor.”12 When considered collectively, the devices that were implemented to disenfranchise black voters were an ideal means through which the south could elude the mandate of the fifteenth amendment to ensure that white supremacists could retain political power.
Throughout the central years of the civil rights movement, the deep south was the scene of white supremacist violence towards African Americans and black resistance as activists marched for equal rights. From the Montgomery Bus Boycott of the late 1950s to the Freedom Rides and the March on Washington of the early 1960s, peaceful protest movements had been spreading throughout the south. In February 1965, a 26-year-old male named Jimmie Lee Jackson was shot dead at point-blank range while participating in a peaceful protest in Alabama.13 At Jacksons’ funeral on March 3, 1965, in Marion, Alabama, Martin Luther King Jr. advocated in favour of the idea of a march from Selma to Montgomery to protest both Jackson’s death and black voting disenfranchisement. During the eulogy, King said, “We will bring a voting bill into being on the streets of Selma.”14 The march took place on Sunday, March 7, 1965, when protestors left Selma and were met with a combined force of deputies and state troopers who declared the protest unlawful and commanded them to leave within two minutes. The protesters were then attacked with clubs, followed by tear gas in subsequent waves of police violence during which John Lewis of the Student Non-Violent Coordinating Committee (SNCC) had his skull fractured.15 ABC interrupted its broadcast of Judgment at Nuremberg to broadcast the violence that its camera crews in Selma were capturing; Americans everywhere saw the images coming out of Alabama which became known as “Bloody Sunday.”16 Later that week, three white ministers who had joined a subsequent march were attacked by local white supremacists leading to the murder of Reverend James Reeb. The murder of Reeb provoked national outrage that was distinct from the public’s reaction to the murder of Jimmy Lee Jackson which led President Johnson to use the crisis opportunistically to propose voting rights legislation.17 Congress passed the Voting Rights Act of 1965 in the months which followed, and the bill was signed into law by President Johnson later that summer. While it is possible to see the passage of the VRA as an embodiment of King’s promise at Jackson’s funeral, historians cannot overlook the manner with which southern violence on white Americans such as Rev. Reeb who was allied with the civil rights activists, provoked national outrage that was much more actionable than the murder of Jimmy Lee Jackson had.
The Voting Rights Act of 1965
The events of “Bloody Sunday” and the national outrage which followed made space for the Voting Rights Act of 1965 (“VRA”) which passed Congress within five months and was signed into law by President Johnson on August 6, 1965. As Kevin Gaines has observed, the VRA transformed the landscape of southern politics almost immediately as it departed from the race and class-oriented restrictions on suffrage which were emblematic of the Jim Crow era.18 The impact of the VRA—particularly in the deep south—was felt within the first four years of its passage with several states doubling the number of non-white registered voters in 1968 compared with the numbers before 1965. In Alabama, those numbers rose to 51.6% compared to 19.3%, in Mississippi to 59.8% from 6.7%, and in Georgia 52.6% from 27.4%. Throughout the eleven states of the former confederacy, 300,000 African Americans registered to vote in the first six months after the VRA’s passage.19 In addition to the short-term improvements in African American voter registration and participation, the VRA had lasting impacts in the deep south between 1965 and 1988 as it decreased the gap between white and black voters in Alabama from 48.9% to 6.6%, in Louisiana from 48.9% to -2.0%, and in Mississippi from 63.2% to 6.3%.20 Overall, the VRA had a tremendous impact on Civil Rights by enforcing the right to universal suffrage as guaranteed by the 15th amendment. However, the law itself was a drastic departure from the principles of federalism that underpinned the American political system which attracted the ire of the southern states who felt their grasp on political power was threatened.
The VRA was tantamount to a statutory enactment of the 15th amendment, aiming to guarantee the right to vote for African Americans, particularly in the South, who had historically been barred from voting through the deceptively race-neutral devices and mechanisms previously discussed. The legislative intent of the law was clear from its title in §1, “an ACT to enforce the fifteenth amendment to the Constitution of the United States.”21 To further demonstrate this intent, §2 states, “no voting qualification … shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or colour.”22 Given that the intent of the law merely repeated the 15th amendment which had been ineffective at deterring black voter disenfranchisement in the south, Congress leaned on the “enforcement clause” of Section 2 of Amendment XV to justify the most audacious provisions of the VRA. Leaning on the testimony provided to Congress while the law was being considered, the VRA focused on three key provisions that sought to remedy black voter discrimination by mandating federal oversight of voter laws.
The VRA distinguished three sets of remedies that would enable the federal government to enforce black suffrage in states that had historically disenfranchised voters at the state and county level. For this paper, the pre-clearance requirement and suspension of voter tests or devices for five years are the two remedies of particular interest because they targeted areas that had a documented history of voter intimidation. Section 4(a) of the VRA provided the coverage formula which determined that Section 5 would apply to states that had “denied [citizens] the right to vote … because of [their] failure to comply with any test or device … for the purpose or with the effect of denying or abridging the right to vote on account of race or colour.” The coverage formula stipulated that this would be determined by the Attorney General or through “declaratory judgment brought by such State or subdivision against the United States” in the District Court for the District of Columbia with appellate jurisdiction allocated to the Supreme Court.23 Subsection 4(b) – (d) also provides additional criteria which collectively with S. 4(a) determine which states or counties are “covered” and subsequently mandated to adhere to the “pre-clearance requirement” in Section 5. These additional requirements applied to states or political subdivisions that had tests or devices on November 1, 1964, where less than 50% of eligible voters or registered voters voted in the election which had to be attested to by the Director of the Census. Most importantly, Congress stipulated that eligibility for Section 5’s pre-clearance requirement as determined under section 4’s coverage formula was not judicially unreviewable—effectively blocking states from filing for relief in the courts.24 The coverage formula determined which states would be “covered” by the VRA for the three remedies that it provided to ensure that voter discrimination based on race did not continue.
Based on the coverage formula of Section 4, the states of Alabama, Georgia, Louisiana, Mississippi, South Carolina, Virginia, and 40 of the 100 counties in North Carolina were subjected to the pre-clearance requirement.25 The first remedy of the VRA was the suspension of voter tests or devices under Section 4(a) in “covered” states or jurisdictions for five years at which point the VRA would need to be re-authorized by Congress. The second remedy of the VRA was Section 5’s pre-clearance requirement which applied to all states and political divisions covered under section 4. The pre-clearance requirement suspended “all new voting regulations pending review by federal authorities to determine whether their use would perpetuate voting discrimination.”26 In a similar manner to Section 4, preclearance could be given by the Attorney General or the District Court of the District of Columbia with the Supreme Court holding appellate jurisdiction over such decisions.27 The pre-clearance requirement remedied potential future discrimination by forcing states to seek approval for any new devices or mechanisms it would enact to ensure that they don’t “have the purpose and will not have the effect of denying or abridging the right to vote on account of race or colour.”28 These two remedies in the VRA represented an unprecedented and audacious act of enforcement by the federal government because they departed from traditional federalism wherein election and voting regulations were controlled at the state level. While Congress based the intent of the law on the enforcement clause of the fifteenth amendment which the Supreme Court had not yet interpreted, the broad use of the enforcement clause was indicative of how the deleterious nature of the voter discrimination laws was perceived nationally. The broad federal power that Congress relied on the pass the two VRA remedies discussed here demonstrates the severity of the injury they believed had occurred—a correlation which was necessary for the VRA to withstand forthcoming constitutional challenges.
While the VRA was seen as one of the foremost achievements of the Civil Rights movement, the southern white elites continued to view African American voting rights as a threat to their political power which compelled them to launch a series of litigious attempts to challenge its constitutionality. Legal scholars and historians have continually characterized the legal challenges from 1965 to 2013 in two categories: early VRA jurisprudence and later VRA jurisprudence. At the centre of these two eras of VRA litigation is the presidency of Ronald Reagan, the advent of the colourblind ideology, and the ascendency of a neo-conservative Supreme Court.
The major challenges under the early jurisprudence came through South Carolina v. Katzenbach, Katzenbach v. Morgan, and Allen v. State Board of Elections in the immediate aftermath of the passage of the VRA. In Katzenbach, South Carolina—joined as amici by Alabama, Georgia, Louisiana, Mississippi, and Virginia—challenged the constitutionality of the VRA by going directly to the Supreme Court seeking injunctive relief before its June 1966 primary elections per the Court’s original jurisdiction power in Art. III, §2 of the Constitution.29 The court denied South Carolina’s petition concluding that Congress was empowered by section 2 of the fifteenth amendment to enact legislation that appropriately remedied the injury of voter discrimination.30 The Court concluded that “Congress felt itself confronted by an insidious and pervasive evil … [through] unremitting and ingenious defiance of the Constitution” adding that “states covered by … the Act had resorted to the extraordinary stratagem of … perpetuating voting discrimination.”31 The decision signified a repudiation of the seemingly race-neutral voter discrimination devices enacted in the south that had been selectively enforced along racial lines. Further, the court’s decision also represented a broad affirmation of the enforcement powers that Congress was given under the fifteenth amendment. Similarly, in Morgan, the court affirmed the validity of a provision of the VRA which barred English language literacy tests as incentivization for non-English language students studying at a school accredited by Puerto Rico.32 This demonstrated that the Court was not likely to agree with an “access-over-qualifications” defence of restrictive voting laws in obstruction of “a right deemed so precious and fundamental in our society.”33 The Katzenbach and Morgan cases demonstrate that in the immediate aftermath of the VRA’s passage, the Supreme Court concurred with the Congress’ unusual exercise of federal power for this law because of the south’s repeated open defiance of the Constitution and the pervasiveness of their restrictive voting laws. Thus, the court was reluctant to indulge the south’s continued obstruction of the fifteenth amendment in using its original jurisdiction power or by overturning the law based on its constitutionality. Rather, the court found that voter discrimination represented such a severe injury to southern blacks that the federal pre-clearance of voting laws represented a proportional remedy.
Another major challenge occurred during this period with the court’s decision in Allen v. State Board of Elections (1969) when the court assessed the preclearance decision of several changes to elections laws in covered states. This decision is important because it reflects how southern states were beginning to change their election laws to find different ways to disenfranchise black voters. One of the mechanisms used was at-large elections which diluted the number of African Americans who voted in a district or state thereby decreasing the likelihood that a black candidate would be elected. Civil rights activists targeted voter dilution, accusing states of using it as a mechanism of race-based discrimination because they viewed minority representation in government as the foundation of their right to vote and ability to enact changes in the social structure.34 In Allen, the Supreme Court concurred with the activists concluding that “the legislative history … supports the view that Congress intended to reach any state enactment which altered the election law of a covered State in even a minor way.”35 With this decision, the court acknowledged that changes made to districts that dilute the vote of minority communities were not permissible under the legislative intent of the law which further demonstrates the judiciary’s support for the VRA. However, the case also provided a glimpse of the legal battles that were going to occur over redistricting in the 1980s and 1990s within the context of equal protection for whites.
Re-Authorizations of the VRA
A key source of the VRA’s success was the temporary nature of some of its key provisions which required Congress to reauthorize it periodically which occurred in 1970, 1975, 1982, and 2006. The VRA unquestionably worked around the traditional principles of federalism that underpinned American democracy and the support for its most incursive provision—the pre-clearance requirement of section 5—was due to the necessity for periodic reauthorization. Before the first reauthorization, the Supreme Court clearly articulated its support for the unprecedented circumvention of federalism in light of the discrimination occurring. However, as positive effects of the law facilitated black participation in southern voting, the court increasingly signalled that reauthorizations of the VRA should accompany greater justification for the prolonged federal intrusion on state matters.36 Additionally, the fight to undo the VRA and the progress it enabled gained increasing momentum in the southern states whose white population increasingly favoured the Republican party that opposed reauthorizations of the VRA which left section 5 intact.
The VRA was ultimately reauthorized in 1970 with improvements in the face of growing Republican opposition to it under the Nixon administration’s “southern strategy.” As the litigation brought on by the southern states in the first five years of the VRA’s existence demonstrates, the southern white supremacist class staunchly opposed the civil rights advances brought about through the law. At a 1969 meeting of the Southern Republican chairmen, South Carolina Congressman Harry Dent said, “Oh yes, the Voting Rights Act looks like it’s coming along pretty good so that the monkey will be off the backs of the South.” Dent then added that the addition of Robert Mardian (one of the future Watergate 7) as the general counsel to the Department of Health, Education and Welfare “should take care of the school thing” in reference to school desegregation.37 The sentiment echoed by Dent at this meeting reflected how southern politicians—who had now hitched their wagons to Nixon’s Republican Party—approached the reauthorization of the VRA in Congress (and civil rights legislation altogether) as they sought to weaken the effects of section 5 on African American voting rights. At the same time, Nixon’s Attorney General John Mitchell suggested that the Congress strike section 5 from the law reverting to the former ineffective case-by-case litigation of voter discrimination.38 Republicans attempted to weaken the law by proposing the burden of proof required for injunctive relief be shifted to the federal government as opposed to the local jurisdictions. However, their attempts failed and the VRA was reauthorized when Nixon signed the five-year reauthorization into law.39 The VRA was reauthorized again in 1975 for seven years with additional protections for Hispanic, Asian, and Native-American citizens through minority language provisions.40 The VRA was subsequently reauthorized in 1975 for another seven years helped along by the Democratic gains in the Congress which resulted from the fallout of the Watergate scandal which brought more democrats to power in the Congress in 1974. Despite the intention that the Nixon administration had to overturn or significantly weaken the VRA, the law was reauthorized twice in the 1970s with additional provisions that strengthened its ban on voter discriminatory devices and extended protections to other minority communities. However, the Nixon administration’s affront to the VRA was merely the tip of the iceberg that reflected the rise of neoconservatism that was to come with the Reagan era.
When the VRA returned to Congress for debate and reauthorization in 1982, the Reagan administration had taken office and with it, a new strategy for combatting voter discrimination protections had emerged under an ideology of colourblindness. The primary reason for the Reagan administration’s inability to deter reauthorization of the VRA was its lack of preparedness to do so, but that did not deter the Civil Rights division of his administration. While the reauthorization bill was being considered, his administration advocated for Congress to significantly reduce the scope of section 5 because Reagan was against the use of minority-wide redress for discrimination which he viewed as antithetical to his administration’s individualistic neoliberal economic policies.41 Notwithstanding the opposition to the VRA’s reauthorization, Reagan played both sides of the issue by praising the reauthorization publicly while instructing his administration to oppose it. When he signed the reauthorization bill on June 29, 1982, he gloatingly observed that the VRA extension signed under his administration—lasting for 25 years—was the longest in its history, adding that “this legislation proves our unbending commitment to voting rights … the crown jewel of American liberties.”42 Although Reagan appeared to be in favour of the VRA at its signing, his long-term impact on voting rights came through his colourblind ideology that emphasized individual equality while denying the social, economic, and historical contexts that structurally positioned some at the bottom of society.43 Reagan echoed this in a radio address on January 20, 1986—the first-ever Martin Luther King Jr. national holiday—when he said, “we’re committed to a society in which all men and women have equal opportunities … a colourblind society … that, in the words of Dr. King judges people ‘not by the colour of their skin, but by the content of their character.’”44 Although President Reagan did not succeed in limiting the power of the VRA, his colourblind doctrine had long-reaching impacts through the later jurisprudence that emerged from the Supreme Court for several decades after his presidency had ended.
In comparison to the early jurisprudence that strengthened the legitimacy of the VRA, several of the Supreme Court’s decisions in the later twentieth century significantly limited its power. Gloria Browne-Marshall argues that with the ascension of Justice Rehnquist to the position of Chief Justice, the progress towards racial justice under law was halted by the new ultraconservative court.45 In the time since the VRA had been enacted, the mechanisms through which states engaged in voter suppression had changed significantly to take on the impression of Reagan’s colourblindness. Rather than merely encompassing the right to cast a ballot, the right to vote was expanded to include proportional representation so that minority votes cast could translate into minority elected officials.46 This led to the concepts of redistricting and gerrymandering, where electoral divisions are drawn up to facilitate or inhibit the election of minority candidates. Beginning with Shaw v. Reno, the new Conservative Supreme Court contended that districts that are drawn solely on the basis of the minority demographics should be held to the “strict scrutiny” standard so that the courts can determine if they represented a violation of the fourteenth amendment’s equal protection clause. In the Supreme Court’s opinion, Justice O’Connor concluded that “racial classifications of any sort pose the risk of lasting harm to our society” adding that “racial gerrymandering, even for remedial purposes … threatens to carry us further from the goals of a political system in which race no longer matters.”47 The individualistic colourblind ideology that was birthed in the Reagan years had successfully found its home in the conservative court which signalled its disapproval for anything but omitting colour entirely from any voting rights enforcement. Morgan Kousser has argued that the Shaw decision contributed to limit the purpose and effect of section 5 by constraining it.48 Shaw was one of the many VRA cases in the 1990s through which the Supreme Court demonstrated the degree to which Reagan’s colourblind ideology had metastasized itself to the conservative court and stymied judicially enforceable racial justice.
Opponents of the VRA in the post-Reagan era have long opposed the law’s continued existence relying on arguments of colourblindness to support their claims that the law accomplished what it was intended to accomplish. These arguments were all the more prevalent with the election of Barrack Obama to the White House, which led to theories that the United States had progressed into a post-racial era. However, legal scholars have noted that Obama’s 2008 election demonstrated an entrenchment of voting practices documented in previous elections which remained largely unchanged among whites.49 Nonetheless, opponents of the VRA used the Obama presidency to mount repeated opposition to the law which culminated in the 2013 Shelby v. Holder decision that invalidated the section 4(b) aspect of the coverage formula. The court justified this decision by arguing that the data used by Congress to justify the law was outdated which did not justify the use of Congress’ enforcement powers to pursue a legislative agenda that conflicted with the principle of state sovereignty. Chief Justice Robert issued the opinion of the court saying, “the conditions that originally justified [section 4] no longer characterize voting in the covered jurisdictions” later adding that “at the same time, voting discrimination still exists; no one doubts that.”50 The court’s argument was based on the coverage formula targeting some states because of past discrimination devices that it found were no longer relevant to voter discrimination. However, the court’s decision was inescapably clothed in colourblind ideals that had characterized many civil rights decisions in the Robert’s court. In a school segregation case in 2007, Roberts similarly concluded that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race”, implying that considering race for redress purposes is also discriminatory intent, echoing the ideals of colourblindness that were engrained into the court’s conservative majority.51 As Matthew Lassiter argues, this decision exemplified the court’s common conflation of the colourblind promise of the Brown decision with the Reagan-era colourblind ideology of neoconservatism.52 By the time the court invalidated Shelby, colourblindness had become a tenet of the Republican Party and permeated through its conservative majority as a manifestation of the southern white backlash to the VRA that had been brewing for decades. The court’s opinion in the case demonstrates how the changing dynamics of race-based voter discrimination no longer fit into a national narrative for progress which illustrates the divergence between the interests of the dominant majority and minority communities in America.
The 48-year history of the VRA demonstrates the moments in American history where society was leaning towards mechanisms of progress that resulted in racial justice for historically oppressed minorities. In part, this essay demonstrates that the national outrage over southern racial violence, the emergence of the VRA, and its early acceptance in the Supreme Court was emblematic of the desire for racial progress in the 1960s. While the VRA was a central part of the progress that occurred, an analysis of the historical events must not discount the likelihood that racial progress occurred in part because of a convergence of interests on a national scale. Derrick Bell argued that “the interest of blacks in achieving racial equality will be accommodated only when it converges with the interests of whites” adding that racial remedies will occur if they “secure, advance, or at least [do] not harm societal interests deemed important by middle and upper class whites.”53 Thus, the eventual regression of the VRA in the post-Reagan era of neoconservatism can be explained in part by the divergence of interests that were at one time aligned enough to enact sweeping protections against voter discrimination. Additionally, the eventual devolution of the VRA can be more adequately assessed through the lens of Critical Legal Studies (“CLS”) or Critical Race Theory (“CRT”) which, in this case, critically analyzes how the law has been used to achieve the goals of neoconservatism. As Kimberly Crenshaw points out “neoconservative doctrine singles out race-specific civil rights policies as one of the most significant threats to the democratic political system … urg[ing] an end to class-based remedies … [and] to limit remedies to … ‘actual victims’ of discrimination.”54 As this essay has demonstrated through the post-Reagan era rise of the neoconservative ideal of colourblindness in the Supreme Court, the increasing affronts to the VRA were emblematic of a racialized ideology that sought to suppress the advancement of African Americans through a disguised form of white supremacy. An analysis of the jurisprudence characterizing the VRA’s regression beginning in the mid-1980s through the lens of CRT demonstrates that colourblindness is inherently rooted in race because it continually seeks to invalidate the domination of African Americans.55 The centrality of a race consciousness is essential for the colourblind argument because it facilitates the rationalization of the contradiction between the ideals of racial progress and the dismantling of the VRA.
Overall, the VRA can be seen as the central success of the civil rights movement because it enabled an overwhelming number of black eligible voters to participate in the electoral process regardless of the motivations of the white political class at the time. The broad affirmation of the VRA by the Supreme Court in Katzenbach, Morgan, and Allen further illustrates the success of the law and wide consensus for the condemnation of race-based voter discrimination. However, the slow erosion of the law through judicial challenges such as Reno, leading to its invalidation in Shelby demonstrates the resurgence of a white leaning hegemonic rule that adapted to racial progress to reinforce the malleable race-based stratification in the United States. Rather than adopting an overtly racialized codified system of stratification such as segregation, the backlash to racial progress took on the deceptive form of colourblind individualism to mask the centrality of race consciousness. This allowed for a neoconservative ideological alignment in the conservative wing of the court which demonstrated that the VRA was no longer a permissible infringement of federalism. In essence, the “goddamdest Toughest Voting Rights Bill” no longer pleased the court because race-based voter discrimination conflicted with its seemingly colour-neutral values.
1. C. Vann Woodward, The Strange Career of Jim Crow (New York, NY: Oxford University Press, 1974), 9, 31.
2. Mark Stern, Calculating Cisions: Kennedy, Johnson, and Civil Rights (New Brunswick, NJ: Rutgers University Press, 1992), 222.
3. LaKerri R. Mack et al., "‘Sick and Tired of Being Sick and Tired’: Challenges to the Voting Rights Act of 1965 & Why We Must Continue to March," Making Connections 16, no. 2 (2016): 19.
4. U.S. Const. Amend. XV, §1.
5. U.S. Const. Amend. XV, §2.
6. Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).
7. W. E. B. Du Bois, Black Reconstruction: An Essay Toward a History of the Part which Black Folk Played in the Attempt to Reconstruct Democracy in America, 1860-1880 (New York, NY: Harcourt, Brace and Co., 1935), 32.
8. Hanes Walton Jr., "The Disenfranchisement of the African American Voter in the 2000 Presidential Election: The Silence of the Winner and Loser," The Black Scholar 31, no. 2 (2001): 22.
9. Mack et al., "‘Sick and Tired of Being Sick and Tired’: Challenges to the Voting Rights Act of 1965 & Why We Must Continue to March," 21.
10. Brian K. Landsberg, Free at Last to Vote: The Alabama Origins of the 1965 Voting Rights Act (Lawrence, KA: University Press of Kansas, 2007), 19.
11. Walton Jr., "The Disenfranchisement of the African American Voter in the 2000 Presidential Election: The Silence of the Winner and Loser," 22.
12 Landsberg, Free at Last to Vote: The Alabama Origins of the 1965 Voting Rights Act, 20.
13. Mack et al., "‘Sick and Tired of Being Sick and Tired’: Challenges to the Voting Rights Act of 1965 & Why We Must Continue to March," 22.
14. Taylor Branch, Pillar of Fire: America in the King Years, 1963-65 (New York, NY: Simon & Schuster, 1998), 600.
15. Dara N. Byrne, The Unfinished Agenda of the Selma-Montgomery Voting Rights March (Hoboken, NJ: J. Wiley & Sons, 2005), 31.
16. Conroy Terrye, "The Voting Rights Act of 1965: A Selected Annotated Bibliography," Law Library Journal 98, no. 4 (2006): 664.
17. Byrne, The Unfinished Agenda of the Selma-Montgomery Voting Rights March, 32.
18. Kevin K. Gaines, "The End of the Second Reconstruction," Modern American History 1, no. 1 (2018): 115.
19. Robert B. McKay, "Racial Discrimination in the Electoral Process," The Annals of the American Academy of Political and Social Science 407, no. 1 (1973): 113; Ryan M. Crowley, "'The Goddamndest, Toughest Voting Rights Bill': Critical Race Theory and the Voting Rights Act of 1965," Race, Ethnicity and Education 16, no. 5 (2013): 698.
20. Mack et al., "‘Sick and Tired of Being Sick and Tired’: Challenges to the Voting Rights Act of 1965 & Why We Must Continue to March," 24.
21. The Voting Rights Act of 1965, S. 1564, 89th Cong. §1 (1965).
22. The Voting Rights Act of 1965, S. 1564, 89th Cong. §2 (1965).
23. The Voting Rights Act of 1965, S. 1564, 89th Cong. §4(a) (1965).
24. The Voting Rights Act of 1965, S. 1564, 89th Cong. §4(b) (1965).
25. Mack et al., "‘Sick and Tired of Being Sick and Tired’: Challenges to the Voting Rights Act of 1965 & Why We Must Continue to March," 25.
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27. Richard L. Engstrom, "The Voting Rights Act: Disfranchisement, Dilution, and Alternative Election Systems," PS, Political Science & Politics 27, no. 4 (1994): 686.
28 The Voting Rights Act of 1965, S. 1564, 89th Cong. §5 (1965).
29. South Carolina v. Katzenbach, 307 U.S., 309 (1966).
30. Laughlin McDonald, "The 1982 Extension of Section 5 of the Voting Rights Act of 1965: The Continued Need for Preclearance," Tennessee Law Review 51, no. 1 (1983): 25-26.
31. South Carolina v. Katzenbach, 307 U.S., 309 & 335 (1966).
32. McKay, "Racial Discrimination in the Electoral Process," 114-15.
33. Cristina M. Rodríguez, "From Litigation, Legislation: A Review of Brian Landsberg's "Free at Last to Vote: The Alabama Origins of the 1965 Voting Rights Act"," The Yale Law Journal 117, no. 6 (2008): 1153; Katzenbach v. Morgan, 384 U.S. 641, 654 (1966).
34. Guinier Lani, "The Triumph of Tokenism: The Voting Rights Act and the Theory of Black Electoral Success," Michigan Law Review 89, no. 5 (1991): 1081-82.
35. Allen v. State Board of Elections 393 U.S., 566 (1969).
36. Samuel Issacharoff, "Is Section 5 of the Voting Rights Act a Victim of Its Own Success?," Columbia Law Review 104, no. 6 (2004): 1714.
37. Leon E. Panetta and Peter Gall, Bring us Together the Nixon Team and the Civil Rights Retreat (Philadelphia, PA: Lippincott, 1971), 105-06.
38. J. Morgan Kousser, Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction (Chapel Hill, London: The University of North Carolina Press, 1999), 686.
39. Kousser, Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction, 687.
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41. Gaines, "The End of the Second Reconstruction," 117.
42. President Ronald Reagan, "Remarks on Signing the Voting Rights Act Amendments of 1982," White House, Washington, D.C., June 29, 1982.
43. Lani Guinier, Lift every voice : turning a civil rights setback into a strong new vision of social justice (New York, NY: Simon & Schuster, 1998), 85.
44. "Radio Address to the Nation on Martin Luther King, Jr., and Black Americans," Camp David, January 18, 1986.
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47. Shaw v. Reno, 509 U.S., 657 (1993).
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