Professional Documents
Culture Documents
BENDING
T O WA R D
JUSTICE
The Voting Rights Act and the
Transformation of American Democracy
with a new preface
BENDING
T OWA R D
JUSTICE
Also by Gary May:
John Tyler
BENDING
TOWARD
JUSTICE
The Voting Rights Act and the
Transformation of American Democracy
G A R Y M AY
Acknowledgments255
Notes257
Index303
vii
Hattiesburg, Mississippi, 1964. Two African Americans attempt to register to vote
while white officials look on. The sign on the wall informs them that in ten days
everyone will know. Their names and addresses will be published in the local news-
paper, giving opponents of black suffrage a chance to retaliate against them. © 1976
MATT HERRON/TAKE STOCK/THE IMAGE WORKS
Although he is only twenty-one years
old, Bernard Lafayette is already a sea-
soned civil rights activist: a veteran of
the Nashville sit-ins, the Freedom Rides,
organizing in Mississippi, he now comes
to Selma to take a job nobody wanted.
© AP/CORBIS
Preface for the Paperback Edition:
“Rainstorm”
xxiii
xxiv Preface to the Paperback Edition
gressional Republicans, prevented them from dismantling it. In the end, that
would be left to the Supreme Court.
On November 9, 2012, three days after the re-election of Barack Obama,
the Supreme Court announced that it would hear the case of Shelby County,
Alabama v. Holder. Its plaintiffs charged that Section 5 of the Voting Rights
Act was unconstitutional and asked the Court to overturn it. Oral arguments
began on February 27, 2013, and it was immediately clear that the Voting
Rights Act was in trouble. Two issues were paramount. Was the Act still nec-
essary in the Age of Obama? And what branch of government was constitu-
tionally authorized to answer that question? Justice Antonin Scalia sarcasti-
cally dismissed the Act as “a racial entitlement,” and accused the Congress
of political cowardice when it easily renewed the Act in 2006 without up-
dating its coverage formula. “Even the name of it is wonderful, the Voting
Rights Act,” Scalia said. “Who is going to vote against that?” Justice Anthony
Kennedy, considered the court’s swing vote because he sometimes sided with
his liberal colleagues, doubted that the law was still necessary. “The Marshall
Plan was very good, too,” he asserted, “[and]—the [nineteenth century’s]
Northwest Ordinance, the Morrill Act—but times change.”1
Burt Rein, the lawyer for Shelby County, went further than Kennedy,
asserting that racial discrimination was no longer a problem in the South.
“Who gets to make that judgment really?” Justice Elena Kagan asked Rein.
“Is it you, or is it the Court, or is it Congress?” “It is up to the Court,” Rein
replied. Kagan was stunned: “Well, that’s a big new power that you are giving
us—that we have the power now to decide whether racial discrimination has
been solved? I did not think that fell within our bailiwick.” Summing up the
day’s heated discussion, Pete Williams, NBC News’ legal correspondent, as-
serted that “it’s safe to say there are five votes to strike down . . . parts of the
Voting Rights Act.”2
Williams was correct. On June 26, 2013, the Chief Justice and his four Re-
publican colleagues declared that “our country has changed” and that the
Voting Rights Act had completed its historic mission. Writing for the ma-
jority in Shelby County, Alabama v. Holder, Roberts noted that black voter
turnout in five of the six covered states now surpassed white turnout and two
southern cities, Philadelphia, Mississippi (where three civil rights workers
were murdered in 1964) and Selma, Alabama, scene of Bloody Sunday, now
had African American mayors. Such progress, he asserted, meant that the
xxvi Preface to the Paperback Edition
Act’s Section 4, which contained the formula that led to the coverage of the
southern states, was outdated. And since those states were treated differently,
Section 4 violated “the fundamental principle of equal sovereignty among
the states,” and was therefore unconstitutional. The covered states were now
freed from Section 5, the provision requiring “preclearance” before changing
voting practices. Abolishing Section 4 left Section 5 moribund. (In a concur-
ring opinion, Associate Justice Clarence Thomas called for the elimination
of Section 5.)3
Associate Justice Ruth Bader Ginsburg, representing the Court’s Demo-
cratic minority, summarized her view from the bench, a rare occurrence,
which one Court expert called “a sign of deep disagreement.” She rejected
Roberts’s notion that America was free of blatant discrimination in voting,
noting that when the Congress renewed the Act in 2006, it did so based on
extensive evidence that “second generation barriers”—gerrymandering, for
example—still obstructed African American voting. Black empowerment
had occurred, she insisted, precisely because of the existence of the Voting
Rights Act. “Throwing out preclearance when it has worked and is continuing
to work to stop discriminatory changes is like throwing away your umbrella
in a rainstorm because you are not getting wet,” Ginsburg said.
She also accused her conservative colleagues of unwarranted judicial
activism since the Voting Rights Act was explicitly created to enforce the
Constitution’s Fifteenth Amendment requiring that the Congress—not the
Supreme Court—create “appropriate legislation” to guarantee that a US citi-
zen’s right to vote could not be “denied or abridged by the United States or by
any state on account of race, color, or previous condition of servitude.” “The
court errs egregiously,” she ended, “by overriding Congress’s decision” to re-
new the Voting Rights Act in 2006.4
Another distinguished jurist joined the debate in August. Reviewing
Bending toward Justice for the New York Review of Books, former Supreme
Court Justice John Paul Stevens, a lifelong Republican appointed to the Court
by President Gerald Ford, issued his own dissent from the Court’s ruling.
He thought Robert’s opinion ahistorical and “questionable.” His reliance on
“the fundamental principle of equal sovereignty among the states” was also
most curious since the Chief Justice accused the Voting Rights Act of violat-
ing it but ignored the fact that for almost a century the Constitution allowed
southern slave states to count their slaves as three-fifths of a man—a “slave
Preface to the Paperback Edition xxvii
bonus” that increased the South’s congressional and electoral college influ-
ence. Furthermore, Roberts treated that principle as constitutional doctrine
when in fact, Stevens noted, it only applied to how states were admitted to
the Union.
Finally, he called Justice Ginsburg’s thirty-seven page dissent (which was
longer than the majority opinion) concise, clear, and “eloquent,” and shared
the minority’s view that Congress—not the Supreme Court—was “the branch
of government designated by the Fifteenth Amendment to make decisions of
this kind.”5
The months that followed the Court’s decision provided additional evi-
dence of the need to restore the Voting Rights Act to its formal glory. Texas,
South Carolina, Mississippi, North Carolina, Georgia, and other formerly
covered states announced their intention to enact redistricting plans, limit
voting time, and require voter IDs, which the Justice Department had earlier
blocked under Section 5. Congressional efforts to enact a new Voting Rights
Act were making little headway given the Republican-dominated House, and
the party of Lincoln showed little interest in supporting new legislation. “The
South continues to restrict voting rights more aggressively than anywhere
else in the country,” noted journalist Ari Berman. “What has changed in re-
cent years isn’t the South but the fact that states like Kansas and Ohio and
Wisconsin and Pennsylvania have adopted southern-bred voter suppression
tactics. Just when the VRA should’ve been expanded to cover the surprisingly
wide scope of twenty-first-century voting discrimination, the Supreme Court
instead gutted the law.”
There have been a few victories for voting rights advocates. In January,
March, and May 2014, judges in Pennsylvania, Wisconsin, and Arkansas
blocked voter ID laws that discriminated against blacks, the elderly, the poor,
and students. In North Carolina, a biracial group called the Moral Monday
Movement fought the efforts of the Republican state legislature to curtail vot-
ing rights and pass legislation benefiting the wealthiest citizens.6
America is evolving into a more multiethnic nation much to the displea-
sure of Donald Trump, Bill O’Reilly, and Cliven Bundy, the Nevada rancher
who famously remarked that African Americans were better off as slaves.
America has not changed as much as Chief Justice Roberts and his col-
leagues believe. It is necessary to strengthen voter protections not dismantle
them. “Race matters,” Justice Sonia Sotomayor noted recently, “because of the
xxviii Preface to the Paperback Edition
slights, the snickers, the silent judgments that reinforce that most crippling:
‘I do not belong here.’ . . . While the enduring hope [is that] race should not
matter, the reality is that too often it does. Racial discrimination . . . is not
ancient history.”7
While it is impossible to predict the future, what is past is prologue. It
seems certain that the struggle for black equality in the polling booth and
in many other places will go on. It is up to every citizen to join this struggle.
“The right to vote is . . . the lifeblood of our democracy,” says Attorney Gen-
eral Eric Holder. “The arc of American history has bent toward the inclusion,
not the exclusion, of more of our fellow citizens in the electoral process. We
must ensure that this continues.”
NOTES
1. Ryan J. Reilly, “Voting Rights Act Supreme Court Case: Scalia Condemns the
Perpetuation of Racial Entitlement,” http://www.huffingtonpost.com/2013/02/27
/voting-rights-act-supreme-court_n_2768942.html.
2. Quoted in ibid.
3. Shelby County, Alabama v. Holder, Attorney General, et al., No. 12–96. Argued
February 27, 2013—Decided June 25, 2013, 2, 10–12, 15–16, 25; for Thomas’s opinion
see Shelby County, Thomas, J., concurring, 1–3; Adam Liptak, “Supreme Court Invali-
dates Key Part of Voting Rights Act,” New York Times, June 25, 2013.
4. Liptak, ibid.
5. John Paul Stevens, “The Court and the Right to Vote: A Dissent,” New York Re-
view of Books, August 15, 2013, 37–39.
6. Dale Ho, “2014: The Voting Rights Spring,” Huffington Post, May 15, 2014, http://
www.huffingtonpost.com/dale-ho/2014-the-voting-rights-sp_b_5331509.html; Ari
Berman, “Fifty Years After Freedom Summer, the Voting Rights Act Is Needed More
Than Ever,” Nation, June 24, 2015, http://www.thenation.com/blog/180389/fifty
-years-after-freedom-summer-voting-rights-act-needed-more-ever.
7. Sotomayor is quoted in Jeffrey Toobin, “Chief Justice Roberts, Meet Bundy
and Sterling,” New Yorker, April 29, 2014, http://www.newyorker.com/online/blogs
/comment/2014/04/chief-justice-roberts-meet-bundy-and-sterling.