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We needed an Act of Congress to enforce the Fifteenth Amendment. Is it still doing its job?
It came after decades of discrimination, violence and disenfranchisement -- President Lyndon B. Johnson signed the Voting Rights Act in 1965, "an Act to enforce the fifteenth amendment to the Constitution of the United States." That Act worked. In the decades since, though, states and the Supreme Court have changed what that Act means and can do.
Our guides to this sweeping legislation are Sonni Waknin of the UCLA Voting Rights Project and Gary May, author of Bending Towards Justice: The Voting Rights Act and the Transformation of American Democracy.
Listen here:
Transcript:
Sonni Waknin: [00:00:01] But. I took this class, called We the People in high school. It's a national competition class. And after the competition kind of aspect is over you. In my class, we just learned about moot court and redistricting and gerrymandering and civil rights law and civil liberties.
Hannah McCarthy: [00:00:25] This is Sonni Waknin.
Sonni Waknin: [00:00:26] I'm the program manager and Voting Rights Council at the UCLA Voting Rights Project.
Nick Capodice: [00:00:31] So back in the day, Sonni was a we the people are we know a lot about we the people.
Hannah McCarthy: [00:00:36] We do indeed. We get to judge it every year in New Hampshire. It's a competition where high school students expound on the meaning, virtues and pitfalls of the Constitution and its application. So Sonni is in high school, very much tuned into the Constitution, and it's 2013. That was a big year for voting rights.
Sonni Waknin: [00:00:56] I was very closely watching the Shelby County case. I graduated high school in 2013. I graduated high school the day that the US Supreme Court struck down Section four B, the preclearance formula that gutted the Voting Rights Act.
Clips: [00:01:11] And at least for now, Jake, the bottom line is that these southern states, largely southern states that had these special requirements that the federal government imposed in that 1965 Voting Rights Act, they are no longer going to have to deal with that, at least for the time being, unless Congress takes special action. And as I said, I don't anticipate that special action any time soon.
Sonni Waknin: [00:01:32] And I decided right then and there, just sitting there, that I was going to go and be a voting rights lawyer.
Hannah McCarthy: [00:01:41] No. So what happened in 2013? What makes a teenager sitting at her graduation set a career path then in there? What is the Voting Rights Act and what has happened to it? That is what we are here to answer the civics one on one. I'm Hannah McCarthy.
Nick Capodice: [00:02:01] I'm an Nick Capodice.
Hannah McCarthy: [00:02:02] And today we are talking about a sweeping piece of legislation that changed voting for millions of Americans. But when we talk about the Voting Rights Act today, it is in the wake of some significant Supreme Court rulings. We are also talking about Shelby County V Holder, about Brunswick versus Democratic National Committee, about Mobile versus Bolden. But before we can get there, the act has to happen.
Clips: [00:02:29] Millions of Americans are denied the right to vote because of their color. This law. Will ensure them the right to vote.
Hannah McCarthy: [00:02:43] That's President Lyndon B Johnson on the day he signed the VRA, which in its own words, prohibits states from imposing any, quote, voting qualification or prerequisite to voting or standard practice or procedure to deny or abridge the right of any citizen of the United States to vote on account of race or color, unquote.
Nick Capodice: [00:03:03] And the Voting Rights Act happened for a reason, right? A huge reason. Can we start there?
Clips: [00:03:14] Many people predicted violence. Negro groups trained themselves to overwhelm it, armed with portable two way radios. Volunteers scattered throughout the march would keep watch. Should violence come, then that day, they would call for help.
Sonni Waknin: [00:03:30] There was a lot of state violence towards primarily black and African American citizens in the United States who had the legal right to vote, but they were unable to access the franchise. And it could be because there was actual violence. They would come to your house and they would threaten you. Unfortunately, people were lynched during this time period for registering people to vote for trying to, and that's just even to try to register to go on the rolls. So not even to access the polling booth, but to register.
Hannah McCarthy: [00:03:59] You also had these targeted obstacles specifically designed to disenfranchize nonwhite voters poll taxes, which was a prerequisite fee that you had to pay in order to register to vote. Literacy tests that you had to pass in order to vote. And grandfather clauses that exempted you from obstacles if your father or grandfather had voted prior to the abolition of slavery.
Nick Capodice: [00:04:22] In other words, if you were the descendant of white people.
Hannah McCarthy: [00:04:25] Pretty much, and these vote denial practices, this violence against black Americans that Sonni mentioned, it was all a part of the Jim Crow era. This was a period in the United States that lasted from around 1870 to 1964, and it was typified by laws and practices that oppressed and abused black people in this country.
Nick Capodice: [00:04:46] And this era really started with the end of reconstruction, right? This is when federal troops withdrew from the south and there was no longer anyone around to enforce the Reconstruction Act and protect black American rights.
Hannah McCarthy: [00:04:57] And so much of that era, Nick, was about keeping black Americans away from the vote, because when reconstruction began.
Gary May: [00:05:06] Well, it was a historic moment, a great moment. Black participation was amazingly active there. Even two United States senators who were African American, a number of congressmen. But that period, alas, did not last very long.
Hannah McCarthy: [00:05:25] This is Gary May, author of Bending toward Justice the Voting Rights Act and the Transformation of American Democracy. When federal troops withdrew from the South, the Democratic Party gained pretty much total control.
Nick Capodice: [00:05:38] The Democratic Party, as a quick reminder, held very different values at this time. And one of those prevailing values was the disenfranchisement of black Americans.
Hannah McCarthy: [00:05:49] And the story of the long and persistent black American fight to regain the right to enfranchisement is where the Voting Rights Act is rooted.
Gary May: [00:05:58] It's a remarkable story because on the one hand, you have the advances of the reconstruction period and then retreats, and that's how their story goes. By the early 20th century, African Americans, they had lost the right to vote. They've gone from thousands to, again, a handful, particularly in the southern states. So it came very quickly advance. And then it's a retreat and we're in that period again.
Nick Capodice: [00:06:32] Wow. So can you go over what specifically was driving those minuscule numbers? How did we go from thousands of active black voters to so few?
Gary May: [00:06:41] You had African Americans participating as much as they could, these trying to vote. And the obstacles were terrible. They had to do oral testing and they received such questions as how many bubbles in a bar of soap, how many judges are in Alabama, for example, there were some 67 of them, and they were supposed to name them one by one. And if they made one mistake, the most minor of mistakes, that would be enough to disqualify them. Sometimes a group would go to the local courthouse to register to vote. And if, say, they were 12 men and women who came that day and ten say passed the questions, but the other two failed, everyone was failed.
Nick Capodice: [00:07:43] And like Sonni said earlier, it wasn't just laws or official practices keeping black Americans away from the polls. There was also violence, lots of it.
Hannah McCarthy: [00:07:53] And a lot of it specific to voting.
Gary May: [00:07:56] Ocoee, Florida, there was an altercation. A couple of activists in the voting rights movement, July, Perry, Mose Norman. There was a confrontation between them and the white segregation. And they wound up dead and most of the town was wiped out.
Hannah McCarthy: [00:08:19] This is called the Ocoee Massacre. It is estimated that between 30 and 35 black individuals were murdered on November 2nd, 1920. Most black owned homes and businesses were destroyed. Hundreds of black individuals fled, and others who stayed were later murdered or driven out. All because that man who Gary mentioned, Mose Norman, tried to vote.
Gary May: [00:08:42] What's so extraordinary is how these people persisted. I mean, they would go back to the courthouse to register. And despite the rejection time after time, they kept on going.
Nick Capodice: [00:09:01] I feel like this is at the heart of the story of the Voting Rights Act. So often when we talk about why a civil right was enshrined, we talk about the oppression, the lack of autonomy or choice, the violence that preceded it. But ultimately, often, the reason something changes for the better is that a lot of people for a long time demanded that change.
Gary May: [00:09:26] It was primarily young people in their twenties who joined the Student Nonviolent Coordinating Committee or snick. They were the shock troops of the civil rights movement.
Clips: [00:09:38] I'm Willie Peacock, secretary for the Student Nonviolent Coordinating Committee. At president, I'm working in Greenwood, Mississippi, in lawful carry on voter registration.
Gary May: [00:09:48] As important as Dr. King's role is in all of this. We've again forgotten so many again of these these young people who would pick a location, for example, one of them went to Selma to work on voting rights. And again, they risked their lives. In one case, a young man was eventually attacked by Selma citizens, but he left that attack. His clothes were bloody. He was told by local activists, you know, go wash yourself. Your clothes are ripped and torn. Your you bled all over them. He said, no, I'm not going to clean myself up. I'm going to let people see what the cost of segregation is. So he continued to promote voting rights despite the fact of being bloody and beaten.
Hannah McCarthy: [00:10:43] This is something that Gary emphasized over and over that, yes, there were very public and connected and essential leaders of the civil rights movement like Dr. Martin Luther King Jr. And then there were the individuals and towns across the country doing anything they could to push for this American. Right.
Gary May: [00:11:01] There were just so many of them. One person who comes to mind was a preacher from Belzoni, Mississippi, named George Washington Lee, who had been very active in the voting rights movement and encouraged his parishioners to sign up to vote. And he, too, was shot and killed by the Ku Klux Klan. And of course, nothing happened with the case. The local sheriff refused to prosecute it. And when they examined Lee's body, which had been very badly shot to death, the local sheriff said, oh, those are those are dental fillings, not shotgun shells. And that was the end of that story. So there were so many like men, women and children who just gave up everything their jobs, their careers, and in this case, his life to fight for what should be an elementary right of every American.
Nick Capodice: [00:12:07] And politicians and presidents did eventually have to acknowledge the undeniable racism, disenfranchisement, wounding and killing of black Americans across the country. I mean, wasn't that the driver behind the Civil Rights Act that was passed in 1964?
Hannah McCarthy: [00:12:24] It was.
Nick Capodice: [00:12:25] So my question is why, Hannah, if we passed an act in 1964 specifically geared towards protecting rights regardless of the color of your skin or your sex, your religion? Why, then, did we still need the Voting Rights Act?
Hannah McCarthy: [00:12:39] Well, that particular Civil Rights Act of 1964, which was our third, by the way, tried to take care of the voting problem. The first section of the act specifically bans unequal application of voter registration requirements. It does not, however, ban burdensome requirements themselves, which tended to be and were designed to be particularly onerous to racial minorities, low income people, and people of a certain level of education. The 1964 Civil Rights Act also fails to address retaliation and violence against nonwhite people trying to vote.
Nick Capodice: [00:13:17] So these are some pretty big loopholes.
Hannah McCarthy: [00:13:19] Yeah. And you give states loopholes and they'll take them. Right. And states continued to. And President Lyndon Johnson watched.
Gary May: [00:13:31] President Johnson had been kind of ambivalent about creating a Voting Rights Act. Yes, he wanted to do it, but he was aware of the fact that he had passed the Civil Rights Act of 1964, and he didn't feel that he had the authority, the power, the acceptance to now do another huge voting rights bill. What changed that, of course, was Bloody Sunday.
Clips: [00:14:01] Detrimental to your safety to continue this march. And I'm saying instead of an unlawful assembly, you have to pass your order to disperse, go home or go to your church. That march will not continue. The people here. Advance Group,
Gary May: [00:14:22] A group of marchers led by John Lewis and other activists. And they they were attacked by troops on horseback. Cattle prods almost lost their lives. Attacked by these troops, beaten, shocked by cattle prods. And what was so effective was that ABC that Sunday had shown a movie judgment at Nuremberg about the Nuremberg war trials. And that was interrupted to bring the country the first footage of Bloody Sunday. And the result was people now going to work with Dr. King. They wanted to join this movement. They wanted to to be a part of it.
Nick Capodice: [00:15:26] Boy, this really happened.
Hannah McCarthy: [00:15:27] Oh, yeah.
Nick Capodice: [00:15:28] People actually tuned in to watch a movie about the Nuremberg trials, and what they saw was coverage of the attacks in Selma.
Gary May: [00:15:34] So it's it's extraordinary that Americans got their story in this case through television and it personalized. People could feel for what was happening to African Americans. And Johnson felt he could now call upon the Congress to pass this legislation.
Hannah McCarthy: [00:15:57] August 6th, 1965, President Lyndon Baines Johnson signed the Voting Rights Act. It became the enforcer of something that was already in the Constitution, the 15th Amendment. That's the amendment that says the right to vote of citizens of the United States shall not be denied or abridged based on race, color or previous condition of servitude. Dr. Martin Luther King Jr was there. And you know, when a president signs a major bill into law, he gives ceremonial pens to people in the audience. Yeah. So MLK received the first, which. Yeah, it's kind of like the least you can do. The act specifically banned literacy tests and other devices used to disenfranchize minority voters. It prohibited intimidation, harassment or coercion of a person attempting to vote. It prohibited someone from acting under color of law to stop someone from voting. It protected minorities from vote dilution, and it established a special formula for identifying discriminatory jurisdictions. And those jurisdictions got special provisions.
Nick Capodice: [00:17:01] All right. I mostly don't know what any of that means.
Hannah McCarthy: [00:17:05] Great. That's what this show is for. So let's go through it. Write the literacy tests you've got, right?
Nick Capodice: [00:17:10] Yeah. Those are things that test your reading ability and comprehension. And if you fail, it prohibits you from voting, which I know disproportionately affected low income Americans, immigrants and black Americans.
Hannah McCarthy: [00:17:21] Right. So that's out as are the ridiculous obstacles that Gary mentioned earlier, like guessing the number of bubbles on a bar of soap or naming every judge in your state. All right. Next. Harassment and intimidation. Does that make.
Nick Capodice: [00:17:35] Sense? Yeah, I've got that one.
Hannah McCarthy: [00:17:36] All right. Color of law.
Nick Capodice: [00:17:38] I don't actually know what color of law means.
Hannah McCarthy: [00:17:40] Yeah, I had to look this up. Acting under color of law is when a person claims they are acting in accordance with the law and as an agent of it, but in actual fact might be violating the law.
Nick Capodice: [00:17:54] So like if the sheriff arrests somebody in line to vote because they're the sheriff, but they don't have probable cause that's acting under color of law to prevent voting.
Hannah McCarthy: [00:18:05] Sure. Or even if an election official prevents an eligible person from voting, claiming they have the authority that's acting under color of law. And by the way, the Voting Rights Act also very importantly established that the attorney general of the United States had the ability to enforce provisions of the Voting Rights Act.
Nick Capodice: [00:18:26] Got it. Next vote dilution. Is this something to do with gerrymandering? I'm just I'm not familiar with that term.
Hannah McCarthy: [00:18:32] Yeah. Yeah, exactly. It might be better understood as minority gerrymandering.
Nick Capodice: [00:18:36] All right. Got it.
Hannah McCarthy: [00:18:37] So this could happen if the residents of a state typically engage in racially polarized voting.
Nick Capodice: [00:18:44] And that's like the minority group typically votes one way and the majority group typically votes the other way.
Hannah McCarthy: [00:18:50] Yeah. If district lines are then drawn in such a way that the minority racial group will never be able to elect its preferred candidate, that is minority vote dilution. The Voting Rights Act made that illegal, right.
Nick Capodice: [00:19:04] The last thing you mentioned was something about a special formula and special provisions.
Hannah McCarthy: [00:19:08] This, Nick, was a significant enforcement part of the Voting Rights Act. Congress created something that they called a coverage formula. If a state had proved particularly discriminatory, according to the formula, which takes a look at the use of literacy tests and other devices, as well as voter registration and turnout, that state would be, quote unquote, covered if a state or jurisdiction had proved particularly discriminatory, according to the formula, which takes a look at the use of literacy tests and other devices, as well as voter registration and turnout that state or jurisdiction would be. Covered. Now, if a covered jurisdiction was actively problematic, the attorney general could send in federal examiners to register voters, maintain voter rolls and examine voter registration applications. These examiners could also observe poll workers and voter conduct on Election Day.
Nick Capodice: [00:20:08] So the goal of all that, essentially, it's just to make sure that the Voting Rights Act is being followed in places where there are signs that it's not being followed.
Hannah McCarthy: [00:20:17] Right. Which is also to say to make sure that the 14th and 15th amendments are being followed. Oc OC Nick, one last big thing. Those covered jurisdictions were subject to something called pre-clearance.
Gary May: [00:20:33] One of the important aspects of the Voting Rights Act was something that's called pre-clearance. The act required that in states that were covered by the Voting Rights Act, that before they could change any important aspect of voting, they had to get the permission of the Justice Department or a federal judge. And after Shelby County, it was weakened.
Hannah McCarthy: [00:21:04] The story of what became of the Voting Rights Act is coming up after the break.
Nick Capodice: [00:21:08] But first, and here is the honest to goodness truth. All of us here at Civics 101 know the nation has changed and is changing. We know laws are coming and going. We know half of what we explained today could be gone tomorrow. So we're trying to keep up. We're doing our best to give you the tools to understand it all. We don't want you to miss it. We don't want you to feel confused. That is the whole point of this podcast. We want you to understand United States government and law. To do that, we have to keep this show up and running. And to do that, we rely on donations from those who have the ability to give. If you have the time and the spare change, consider making a donation at civics101podcast.org.
Hannah McCarthy: [00:21:51] There's also a link in the show notes. Do it because you want to keep knowing. Thanks. We're back. We're talking about the 1965 Voting Rights Act.
Nick Capodice: [00:22:01] And you left us on a bit of a.
Hannah McCarthy: [00:22:02] Cliffhanger, which I learned from Carolyn Keene.
Nick Capodice: [00:22:05] Is that a Nancy Drew reference?
Hannah McCarthy: [00:22:06] Yeah, every single chapter pretty much ends with Nancy being locked in a closet in an abandoned tower. So let's unlock the door. The Voting Rights Act is signed in August 1965. It enforces the 15th Amendment designed to finally support the registration and voting of black Americans.
Nick Capodice: [00:22:25] So you've told me what the act was designed to do. So now my question is, did it actually work? Did it actually do those things?
Hannah McCarthy: [00:22:33] It did. Racial discrimination in voting, decreased registration of black Americans increased by the end of 1965, a quarter of a million new black voters had been registered to vote. A third of those voters, Nick, were registered by federal examiners. A third. Oh, yeah.
Nick Capodice: [00:22:51] Wow.
Hannah McCarthy: [00:22:52] And right before the break, we talked about a significant provision in the Voting Rights Act. If a state had been discriminatory in the past, it had to get approval from the federal government if it wanted to add or change election and voting law and procedures. This is called pre-clearance. Here's Sonni walking again, the voting rights lawyer who is paying close attention to the fate of the Voting Rights Act in 2013.
Sonni Waknin: [00:23:19] If you're really bad, you're and you're covered under this formula for, like, historic discrimination because your voter rolls, you have a high minority population, your voter rolls show very little minority population. We're going to make you go ask the federal government or a court in D.C. for a mother. May I? And this applied to everything. If you were a covered jurisdiction and you wanted to close a polling location, like even one polling location, you had to go ask someone if you were allowed to do that.
Nick Capodice: [00:23:48] Now, I have noticed, Hannah, there has been a lot of past tense language going on here when you and Sunny are talking about the VRA and Sunny just said applied as in it used to.
Hannah McCarthy: [00:24:00] Correct.
Nick Capodice: [00:24:01] Because something happened to that coverage, didn't it?
Hannah McCarthy: [00:24:05] Something did. And that's something. Name is Shelby.
Clips: [00:24:08] Congress must ensure that the legislation it passes speaks to current conditions. The coverage formula, unchanged for 40 years, plainly does not do so, and therefore we have no choice but to find that it violates the Constitution. Justice Thomas has filed a concurring opinion. Justice Ginsburg has filed a dissenting opinion in which Justices Breyer, Sotomayor and Kagan have joined Justices Breyer.
Speaker6: [00:24:34] Sotomayor, Kagan and I are of the view that Congress is decision to renew the act and keep the coverage formula was an altogether rational means to serve the end of achieving what was once the subject of a dream the equal citizenship stature of all in our polity, a voice to every voter in our democracy, undiluted by race.
Hannah McCarthy: [00:25:04] So here's the environment in which Shelby V Holder came before the Supreme Court.
Sonni Waknin: [00:25:12] You have new people who are coming on to the court during the second Bush administration. You have Alito who joins the court. John Roberts becomes the chief justice during this period. And so you have a little turning of people who are not so supportive of voting rights. And after the 2008 election, which was a lot of people say a rejiggering of the political playing field. You also have a really intense focus on redistricting and on controlling power.
Hannah McCarthy: [00:25:45] 2008, of course, was when Barack Obama was elected president of the United States.
Sonni Waknin: [00:25:49] And you have states who are really focused now on redistricting as a way to gain back power. Right. Redistricting becomes more partizan during 2010 and 2011, and it actually results in this huge shift. All this money is going to state legislatures to re redistrict. However, states that want to do a lot of partizan and racial distracting and racial gerrymandering that are in the South can't do that because they had to go ask the federal government, either the attorney general's office or you'd have to go to a court in D.C. to approve of your redistricting bills.
Nick Capodice: [00:26:27] Okay. So there's a sea change in the politicking around voting.
Hannah McCarthy: [00:26:31] There is partially because the midterms of 2010 in backlash to Obama significantly changed the political leanings of the legislature. And to be clear, even prior to this period, things had started to shift. In the 1980s, the court took up a case called Mobile versus Bolden.
Sonni Waknin: [00:26:48] And so in Mobile versus Bolden, the Supreme Court had held that section two of the Voting Rights Act. You had to prove intentional discrimination. Now, that's a really high bar. It's extraordinarily hard. It it has only actually gotten harder to prove intentional discrimination in the jurisprudence courts now. And I would say the Supreme Court really want to see people saying explicitly racist things. They want this direct smoking gun evidence. Generally, you don't have that. Or, you know, they say that if they want everyone to be the racist right, it wasn't enough that the main person causes, like said on the record, that they were doing something to harm certain voters. Yeah, but not everyone said that. Who voted for the bill? Just the main person who wrote the bill.
Nick Capodice: [00:27:39] So if we jump ahead to Shelby V Holder, what year was that again?
Hannah McCarthy: [00:27:42] At 2013.
Nick Capodice: [00:27:43] 2013. Even though this Mobile V Bolden decision had happened, we still did have preclearance, right?
Hannah McCarthy: [00:27:49] Yeah.
Nick Capodice: [00:27:50] And that meant many jurisdictions, including a lot of jurisdictions in the South, that wanted to change voting itself along political lines, couldn't get it done.
Hannah McCarthy: [00:27:59] Yeah. And they were not very happy about that. So you've got these jurisdictions that feel fettered by the Voting Rights Act and you've got major ideological shifts in Congress. And the Supreme Court suddenly says it was the perfect storm of time to go after the Voting Rights Act.
Sonni Waknin: [00:28:16] So this case gets brought from Shelby County in South Carolina, which is kind of fitting. The state that challenged the the name is the name plaintiff. And the case that upheld the Voting Rights Act is challenging now. The Voting Rights Act once again and Chief Justice Roberts authored the opinion gutting the formula, the coverage Formula six. So Section four B of the Voting Rights Act saying that the South had changed, that the justification for the Voting Rights Act was that the South was a bad actor, and Southern jurisdictions needed the federal government to step in and to make sure that they were ensuring voting protections for their citizens, especially their citizens of color. And the act had worked extraordinarily well. You had increased voter registration. Some of the highest turnout in American history had been in 2008. You had more electeds of color and especially local electeds of color joining in, and you still have preclearance. And so there was less discriminatory redistricting. So the justification was that we don't need this anymore. This is like a huge burden. What's interesting, though, is that they don't say in the majority opinion that pre-clearance is unconstitutional. They just say that the coverage formula because it hadn't been updated since the sixties. The coverage formula was was unconstitutional.
Nick Capodice: [00:29:54] But without the formula, you can't say a state is covered. And without covered states, preclearance loses all its teeth and meaning, right?
Hannah McCarthy: [00:30:03] Well, kind of. Sunny explained that a state can still be what's called bailed into the pre-clearance structure. A federal court can place them under federal scrutiny for a period of time. And since the Shelby County decision, Nick, there has been an increase in preclearance lawsuits from individuals, from groups who claim that their state has violated the nondiscriminatory element of the Voting Rights Act.
Nick Capodice: [00:30:28] So that's my question right now, Hannah. There's still the rest of the Voting Rights Act, right? Importantly, the part that emphasizes that you cannot have a practice or procedure that discriminates based on race, which is the point of the Voting Rights Act.
Hannah McCarthy: [00:30:45] Yeah. And not just race and color. Certain language. Minorities were later added to the law as well. You know, people who speak a language that's not predominant in an area. Here's the thing, though. Back when the coverage formula was in place, discriminatory jurisdictions had to prove that their voting and elections changes were not discriminatory. The burden of proof was on them. Now it's the other way around. A government or private party has to prove that their jurisdiction is being discriminatory. The burden of proof has shifted. And remember that 1980 case Mobile versus Bolden, where the court ruled that you didn't just have to show discrimination, you had to show intentional discrimination. That is really, really hard to do. Then comes Brnovich in 2021.
Sonni Waknin: [00:31:37] In that case, what was really interesting is, you know, one of the the challenges to the law was about native voting. It made it tremendously hard for me to voters to be able to cast ballots. Native voters in Arizona primarily live in northern Arizona. It's very rural. They have a huge lack of access to drop boxes, polling places, all of these other things. And the language that legislators used to pass this vote denial bill was specifically targeting. They used racialized language against native Native Americans in Arizona. And that kind of gets lost because what we looked at was like statistical harm. And there was this other challenge about out of voting precincts, whereas, you know, you had legislators say things on the record that the Ninth Circuit said were racially discriminatory and showed intent. But the Supreme Court said it wasn't good enough. Because not everyone said it.
Hannah McCarthy: [00:32:37] Justice Samuel Alito authored the majority opinion. He took the opportunity to lay out some guidelines for future challenges to section two of the Voting Rights Act. Now, not a binding test, but an indication of how the court would evaluate voting rights cases in the future. Now, those guidelines include considering the strength of a state's interests, like in preventing voter fraud or something in the challenged legislation and considering the differences in how that legislation affects racial or ethnic groups. Of course, in Brnovich itself, the court set a higher bar for that racial disparity question. In her dissent, Justice Elena Kagan pointed out recent discriminatory voter law and expressed concern that the Brunswick decision was essentially weakening the Voting Rights Act.
Nick Capodice: [00:33:25] So what does all of this mean for the effect of the Voting Rights Act? I mean, is it still the same thing that passed in 1965?
Hannah McCarthy: [00:33:36] Well, Congress has taken steps to reaffirm, extend and strengthen the VRA. For example, after that 1980 Mobile versus Bolden case, they added a line saying, quote, Restates the prohibition against voting discrimination to include as violative conduct which has the effect of discrimination affect not intent. But so much depends on what the court rules. And Sonni told me there is another opinion coming down the pike.
Sonni Waknin: [00:34:06] And so that's what still exists today. And what's in danger with the. A merrill case that got taken up. It's the Alabama redistricting case that got taken up by the US Supreme Court. And there are people on that court who authored the Shelby County decision who have showed hostility to voting. We should know by June of 2023 whether or not we have Section two left of the Voting Rights Act. And if we don't, things are going to be dramatically different.
Nick Capodice: [00:34:42] Now, I know there's always this distinction between what SCOTUS decides and what Congress can do. Like if the Supreme Court eliminates a federal right, there are then calls upon Congress to enshrine it in law instead. And the Voting Rights Act exists because of Congress, not because the Supreme Court offered an opinion about the 15th Amendment. So does Congress have a plan for voting rights?
Hannah McCarthy: [00:35:10] Well, they've tried the John Lewis Voting Rights Act, which strengthens portions of the VRA and restores some of what was eliminated in Shelby. And Brnovich has failed several times in Congress, most recently as of the publishing of this episode in the Senate in 2022, where it didn't even make it to a vote. But there is one important thing that Sunny brought up when it comes to voting rights, and it has nothing to do with the Supreme Court or Congress.
Sonni Waknin: [00:35:35] What you can do, though, is lobby your state legislature to pass a state level Voting Rights Act. Federal protections are a floor, not a ceiling. And states can always be doing more and passing their own laws, especially because most states in the United States, I believe 48 of them, have their own election clauses that guarantee free and fair elections. And so that means that you can pass a Voting Rights Act under the state constitution because it will actually be enshrining constitutional protections and statutory.
Clips: [00:36:03] Language, as always, when the federal government fails to act. You can count on New York to punch back and fight even harder. We will not rest. We will not rest while these injustices continue. As I said, we did it with abortion. We did it with reproductive freedom. We did it with gun legislation, and now we're doing it again with voting rights.
Hannah McCarthy: [00:36:24] I think it's important to remember what the Voting Rights Act was designed to do, put an end to rampant discrimination. Yes. But by way of enforcing the 15th Amendment, it was explicitly called an act to enforce the 15th Amendment. There is an unambiguous constitutional right that this act is designed to enforce, and that right isn't going away, at least not yet.
Gary May: [00:36:52] The right to vote shall not be abridged because of race, color or creed. What's so difficult about that? It should be the most harmless thing in the world. This is what America is about to oppose. That is to oppose America itself.
Hannah McCarthy: [00:37:31] This episode was produced by me, Hannah McCarthy with help from Nick Capodice. Christina Phillips is our senior producer. Our staff includes Jackie Fulton. Rebecca Lovejoy is our executive producer.
Nick Capodice: [00:37:40] Music In this episode from Sven Lindell, Daniel Friedel Nuisance. Jack Adkins. Hollis Frank Johnson Post. El Flaco Collective o.T. Penny Lane and Romero. If you're like us and you just can't get enough of civics in this world, you should subscribe to our newsletter. It's called Extra Credit. It is pure joy and trivia and fun rants, and it comes out every other Tuesday. And it's a really good excuse to just take 5 minutes and learn something new. You can find the link at our website, civics101podcast.org.
Hannah McCarthy: [00:38:09] Civics one one is a production of HPR New Hampshire Public Radio.