Election Law Case Comment 127 Harv. L. Rev. 95

Beyond the Discrimination Model on Voting



Retirement with dignity was denied to section 5 of the Voting Rights Act of 1965 (VRA). If ever a statute rose to iconic status, a superstatute amid a world of ordinary legislation, it was the VRA. In the course of not quite half a century, the Act was pivotal in bringing black Americans to the broad currents of political life – a transformation that shook the foundations of Jim Crow, triggered the realignment of partisan politics, and set the foundation for the election of an African American President.

Deciding when the time has come is never easy. We see the athlete one step too slow to carry the team, the tenor no longer able to hit the necessary C, the pop star straining to hide the arthritic hip. Invariably there are the moments that recall stardom, be they increasingly seldom. But ultimately each waning icon is allowed to step down gracefully, carried by the fans basking in the memories of faded glory.

What President Lyndon Johnson introduced to America as the crown jewel of the civil rights era has now been struck down by the Supreme Court as timeworn, no longer constitutionally responsive to the America that the Act itself helped create out of the overt racialism of the American South. According to the Court in Shelby County v. Holder, civil rights—era concerns could no longer justify requiring certain jurisdictions to obtain Department of Justice (DOJ) approval before altering voting procedures. For instance, until the Court’s decision, Shelby County, Alabama, was subject to administrative preclearance because less than fifty percent of its citizens voted in the 1964 presidential election. For the Court’s majority, that was simply too long ago, leaving section 4, the VRA’s coverage formula, out of touch with current reality: “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”

A constitution demanding a respect for the dignity of the states and contemporary proof of a close fit between means and ends when race-based distinctions are drawn allows no room for sentiment. “That is no country for old men,” wrote William Yeats of the willingness to cast aside the once vibrant but now rendered “a paltry thing.” And a Court no longer attached to the past glories of the Act looked with disregard at an odd legislative structure that tied its regulatory framework to turnout statistics from the 1964 presidential election. As a formal matter, the Court struck down only the formula and left untouched the constitutionality of the VRA’s preclearance structure. The Court took pains to leave open the prospect of a renewed coverage formula, one that does not turn on what seventy- and eighty-year-old voters did a half century ago, perhaps sending our currently dysfunctional Congress on a new wayward journey: “Congress may draft another formula based on current conditions.” But despite the Court’s care to avoid ruling on section 5, it was the indignity that “[s]tates must beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own” that provided the unacceptable constitutional insult.

The Court’s unromantic constitutional ruling should prompt rethinking whether the regulatory model of prior federal approval of voting changes is truly responsive to the voting problems of today. The critical assumptions of the challenged provisions of the Act corresponded to a world in which overt racial exclusion meant that black citizens faced first-order impediments simply to getting registered to vote and in which only the federal government could assume the responsibility to challenge the persistence of Jim Crow. For much of post—Civil War American history, the prospect for goal-oriented abuse of election processes has been directed largely – though never exclusively – at black Americans. As a result, for much of American history, voters’ vulnerability to disenfranchisement played out largely along race lines. Because of this, the defining law of democracy in America is heavily the law of black enfranchisement, either directly or even indirectly as in Baker v. Carr. But different times call for different measures, and the Court’s decision, however wrenching, should compel taking stock of what has changed since 1965.