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The Future Of The Voting Rights Act

With Anthony Brooks in for Tom Asbhrook

We’ll hear voices from the South on race, justice and elections after the Supreme Court Voting Rights’ Act intervention.

Ryan P. Haygood, director of the NAACP Legal Defense Fund, talks outside the Supreme Court in Washington, Tuesday, June 25, 2013, about the Shelby County v. Holder, a voting rights case in Alabama. Charles White, the national field director for the NAACP is second from right and Sherrilyn Ifill, president of the NAACP Legal Defense Fund is at right. The Supreme Court says a key provision of the landmark Voting Rights Act cannot be enforced until Congress comes up with a new way of determining which states and localities require close federal monitoring of elections. (J. Scott Applewhite/AP)

Ryan P. Haygood, director of the NAACP Legal Defense Fund, talks outside the Supreme Court in Washington, Tuesday, June 25, 2013, about the Shelby County v. Holder. The Supreme Court says a key provision of the landmark Voting Rights Act cannot be enforced until Congress comes up with a new way of determining which states and localities require close federal monitoring of elections. (J. Scott Applewhite/AP)

The Voting Rights Act was the monumental achievement of the civil rights movement, a powerful federal response to racist policies like poll taxes and literacy tests that kept blacks home on Election Day. But that was 1965.

Today southern blacks vote at even higher rates than whites. So this week the Supreme Court struck down the heart of the law, freeing mostly southern states to change their election laws without federal approval.

This hour, On Point: A southern perspective on race, change and the Voting Rights Act.

Guests

Vernon Burton, professor of history at Clemson University, whose research focuses on the American South, race relations and community.

Kareem Crayton, professor of law at University of North Carolina School of Law, whose work integrates law, politics and race. He led a group of academics who submitted an amicus brief (PDF) in Shelby County v. Holder.

Ronald Keith Gaddie, professor of political science at the University of Oklahoma, whose work focuses on elections and Southern politics. He’s author of “The Triumph of Voting Rights in the South.” (@KeithGaddie)

Interview Highlights

What’s left of the Voting Rights Act? Kareem Crayton explained:

“As a technical matter, everything else in the act remains valid. So Section 5 — which is actually a substantive rule that basically requires certain designated states to get federal permission before enacting a new change in their law — remains on the books. The key to this of course is that by invalidating Section 4, the Court has basically said there is no place in the country currently that has to comply with the ruling in Section 5.”

Crayton gave a succinct history of the Voting Rights Act:

The origin of this statute in 1965 was a direct response, in part, to the bridge in Selma of non-violent African American marchers protesting the denial of voting rights in violation of the Fifteenth Amendment. But of course that had been a fight that had been waged basically [since] the early 1900s, and so Congress decided to act, initially getting at the places that were most persistent in denying the right to vote, and that definitely included the places in the deep South. But since that time in the 1970s, that scope was expanded to include similar circumstances for language minorities — Latinos, Asian Americans, Native Americans — and so that took it to other parts of the country as well.

Is a law written in 1965 still relevant? That’s the central argument, said Crayton:

“The question is just whether things have improved to the extent that this is no longer needed. Congress in 2006 decided that more time was needed; the Court seems to say, ‘Well, we’re not so sure.'”
– Kareem Crayton

“Shelby County is a county in Alabama, and they made the argument that — you know, 1965 was certainly a bad time, and nobody questions that the rule should have applied then, but current circumstances are so different that maybe this is not as warranted as before. The same argument was made a few years back in a case out of Texas, northwest Austin. The Court seemed to look at the matter and raised some doubts about whether it could be a applied in the same manner based on current evidence. The best argument that I think they offered was, “Well, look, we’ve got a president who’s non-white and he was elected notwithstanding the fact that we’ve got a lot of different people, some of whom don’t necessarily embrace racial equality. But that’s gotta be a sign that things are better now than before.” And so the Court looks at that evidence and says apparently it just doesn’t make sense to have a statute that explicitly talks about the world as it existed in 1965 and continue to maintain the same kind of oversight, given all of these changes that have occurred. And nobody questions whether the number of African Americans who are registered and voting — and certainly other non-white groups too — have increased in these jurisdictions. The question is just whether things have improved to the extent that this is no longer needed. Congress in 2006 decided that more time was needed; the Court seems to say, “Well, we’re not so sure.”

[Chief Justice Roberts] sees that there is not really a logical relationship between the formula that’s in the statute — which, again, is identifying places based on their conditions in 1965. What he looks around and sees … these significant improvements in political participation. And so because he sees the logical relationship, he and four of the justices said this can’t stand any longer.”

Crayton explained what was at the core of the dissent:

“I think there are two points. First is that there is a concern about whether the world that Chief Justice Roberts sees is a world that indicates there have been jurisdictions that have actually gotten the lesson of Section 5, so that without Section 5 they would continue to do the kind of good work, continue these improvements. Or, whether the world is such that actually the results are primarily due to the continued oversight of Section 5 and that without it there might be essentially backsliding — which is exactly what Congress thought about when it devised the statutory provision in 1965 and decided to renew it, by the way, in 2006.

“The other point that the dissent makes — I think it’s an important one — [is that] ultimately, this is a judgement that a legislature makes … It doesn’t seem to be the role of the Court, in Justice Ginsburg’s view, to sort of second-guess that decision, absent some overwhelming problem.”
– Kareem Crayton

“The other point that the dissent makes — I think it’s an important one — ultimately, this is a judgement that a legislature makes. They look at data and they make considered judgements. And you know what? They may be right, they may be wrong, but they need to be respected. And insofar as it was a bipartisan majority making the decision, it was overwhelmingly approved by a Republican-controlled Congress and signed by a Republican president. It doesn’t seem to be the role of the Court, in Justice Ginsburg’s view, to sort of second-guess that decision, absent some overwhelming problem.

“And the other important point to see in this that [Justice Ginsburg] brings up is Shelby County is not necessarily the best party to bring up this claim. By most any measure, Shelby County has violated Section 5 and has been objected to by the federal government such that they couldn’t enact plans that the federal government found to be threatening to minority voting rights. So Shelby County, and Alabama more generally, are actually poster states and jurisdictions, if you will for showing why there’s a need for Section 5.”

Vernon Burton the “racial polarization” trend in voting:

“Voting rights are a national problem, but it has been shown particularly by scholars that racial polarization — that is where most whites vote for whites, most African Americans or minorities will vote for an African American candidate — is strong throughout the country, but it’s even stronger in the South and particularly those states that are covered, which then means it makes it more difficult for African Americans to have a meaningful vote to elect candidates of their choice.”

Keith Gaddie on the act’s coverage formula:

“An avoidable tragedy would be the best way to put it. Congress was told in 2005 and 2006 by several legal scholars and historians and political scientists that there were potential defects in the coverage formula. And the coverage formula, when you look at it, is technically a race-neutral formula. It’s based on registration and participation figures and the historic use of a test or device to qualify to vote. Now, tests and devices are permanently banned in the United States, thanks to one of the subsequent renewals of the Voting Rights Act. But one thing that’s happened over time is that we’ve had changes in areas where we have low participation. And one of the arguments … made to Congress was they needed to have an updated coverage formula that would keep in areas that had low participation or hold out the prospect of bringing in jurisdictions as participation fell. There are parts of the South that are in desperate need in keeping Section 5 coverage, of keeping pre-clearance in.”

Gaddie on enduring voter discrimination across the country:

“If you looked at Mississippi and you looked at it with a higher degree of granularity, what’d you’d see is higher African American participation but many counties in that state still have low participation problems and still have racial discrimination problems in their elections. So parts of Mississippi still need close scrutiny. The whole goal of the act was a response to an argument that was made by Ross Barnett, the old governor of Mississippi that legislatures can change laws faster than courts can overturn them. So we have Section 2 of the act which can react, which is where most gains have been made in minority representation and participation, but it takes a lot longer to litigate these things than to stop them before they’re implemented.

“We’ve also got problems in other parts of the country, other parts of the South that aren’t covered currently, Indian parts of the West. If you ask me the two states where the greatest concern is for getting rid of Section 5, I would say Texas and Arizona, which were fully covered by Section 5 and where we have probably some of the most obnoxious and divisive efforts to disenfranchise Hispanics in the U.S.”

Gaddie on the shift of the burden of proof:

“DOJ is going to have to prove these jurisdictions have discriminated rather than the jurisdiction proving that they don’t.”
– Keith Gaddie

“It used to be that a state or a jurisdiction would propose to change law, and then they’d have to get approval either from the federal courts or the Department of Justice to make the change. Now what they can do is they can change the law, implement the law and you’re going to have to sue. And what happens is the burden of proof shifts away from the state or the jurisdiction and shifts toward the plaintiff. So DOJ is going to have to prove these jurisdictions have discriminated rather than the jurisdiction proving that they don’t.”

Crayton on what happens without Section 5, new barriers to vote and litigation:

“It turns out history does have a cyclical nature about it. And it’s important to bear in mind — which is one of the things that Congress did in 2006 — that continued vigilance, that is continued use of Section 5, was important because we found that in instances where the federal government removes this sort of intervention too early, there’s nothing more than retrenchment that happens. Supreme Court at the end of the 19th century decided that it was no longer important for the U.S. Constitution to demand federal involvement, and what happened was Jim Crow. It’s not the suggestion that we’re going to get exactly to the same world … but the decision that Texas, South Carolina and now North Carolina are now all making, basically doing these sorts of efforts in erecting new barriers in the right to vote without restraint, indicates that they never really got the lesson of Section 5 — that is to adopt laws that at least take into account the concerns of minority citizens. And Keith is exactly right: These things are going to end up in court in a very time consuming and frankly expensive process, the very kind of expense that these states are claiming that they are trying to avoid. And more important that that: It’s going to bear a significant burden on the very people who we all agree have suffered exclusion, outright political exclusion, for about a century. So that’s sort of the irony in this decision.”

Burton on partisan politics and race in the South:

“You really cannot separate out partisan politics and race in the South.”
– Vernon Burton

“Of course the South has changed and changed for the better in racial relations, but it’s also changed in another way. The cultural wars have had a terrible effect, I believe. In particular, the way the political system developed in the South with the 1964 Civil Rights Act, then the Voting Rights Act, that you really cannot separate out partisan politics and race in the South. And that’s different in the rest of the nation. So it gets very confused and very complex. I think Section 5, while not perfect, at least it was prophylactic and got some of the most egregious problems that worked against the kind of structural [inequality] and problems of wealth and inequalities and things like that that would make it harder for people — minorities, particularly in the South, particularly African Americans in the South, growing Hispanic population — to have a meaningful vote to elect the candidate of their choice.”

Gaddie on Hispanics and Asians:

“They are not effectively mobilized, not effectively included in the process.”
– Keith Gaddie

“A lot of the secondary barriers to voting have largely been eliminated among African Americans. You look at socioeconomic status of a black voter vs. a white voter — a black voter’s more likely to turn out. The real barrier is with Asian and Hispanic voters who are having trouble getting to the franchise, even if they are citizens. They are not effectively mobilized, not effectively included in the process. Do you get there with Section 5? Not necessarily. Most of the gains come from Section 2 and then Section 5 being available to institutionalize those gains that were achieved either through the incorporation of Section 2 or through litigation in those Section 5 states.”

Gaddie on Congressional action:

“We’ve lost coverage in areas where we need it. We’ve gained the opportunity to implement coverage where we can get it. I don’t think Congress is going to pass it. I think that the states’ rights crowd, in the U.S. House in particular, is so strong you will never move legislation through this Congress.”

Crayton on what the right to vote really means:

“I think none of us would actually want to live in a world in Iran or in a number of other totalitarian states, where everybody gets a chance to cast a ballot, but the ballot isn’t counted fairly.”
– Kareem Crayton

“I know a lot of people seem to take the view that if you can cast a ballot, then that is sufficient in order to realize the promise of Fifteenth Amendment. But I think none of us would actually want to live in a world in Iran or in a number of other totalitarian states, where everybody gets a chance to cast a ballot, but the ballot isn’t counted fairly or the structures are in place so that ballot is not effectively given full value. That’s really the question that we are concerned about at this stage with respect to current conditions. And in those respects, there are still significant differences in Section 5 jurisdictions vs. not. And it’s important to see that the right we’re talking about isn’t the right to just elect people who are the same race as you. We’re talking about even candidates who are white who are preferred by African Americans in these jurisdictions who consistently get voted out.”

Burton on the evolution of racism in the South and the “us and them” attitude arising from the cultural wars:

“Old habits are hard to change, particularly when they’re linked, in fact, with this extraordinary, integral link between race and party in the South.”
– Vernon Burton

“Race is not just a southern problem. I guess it’s a world problem, certainly an American problem. But in the South, because of the history, particularly in election law, Congress was able to do something with the Voting Rights Act about that specific area. Certainly the South is so much better in terms of those sort of race issues. But old habits are hard to change, particularly when they’re linked, in fact, with this extraordinary, integral link between race and party in the South. I do think there has been an intensification, as I said, as part of the cultural wars — not the kind of old sense of racism that we had … What I see now … people don’t think of class very much in the South. There’s whites and blacks. This is not true at all; the historical record is there. But people will say, among whites, “We pay taxes, and they have welfare.” It’s this kind of stereotypical thing. I don’t think there’s a basis for it. One of the things that’s happened that has sort of made these issues worse and why you have racial polarization in voting increasing instead of decreasing, even from 2008 to 2012 with President Obama’s election, has been that with the civil rights movement there really wasn’t a justification — at least an intellectual or a theological justification — for segregation as there had been the big arguments on pro-slavery. But with the sort of talk radio and so much of the television broadcasters who have come on strong in the cultural wars — I think it’s given people a sense there is an intellectual basis that sort of justifies their old habits and attitudes about race. This is not to say that people aren’t treating each other better … but I think it does affect, particularly in the political arena, how people have the opportunity to vote, to have an equal vote cast. It has nothing to do about who is elected, but that your vote is counted. There are all sorts of ways to make a vote count less; it has nothing to do with you predicting an outcome at all.”

Gaddie on the urban South, the suburban South and the rural South:

“There are three souths. Two of them are growing, and one of them isn’t. Two of them are progressing, and one isn’t.”
– Keith Gaddie

“There are three souths. Two of them are growing, and one of them isn’t. Two of them are progressing, and one isn’t.

“There is a dynamic, diverse urban South that you find in Nashville, Atlanta, Charlotte, Richmond and Charleston and places like that. Austin, Texas: good example of the new moderate urban South, the sophisticated South.

“There is a suburban South that tends to be a bit more concerned with money and consumerism and it’s a bit more segregated, but the values of the middle-class black or middle-class white or middle-class Hispanic suburb are not that different in terms of the day-to-day pursuit of life. But they’re not as well integrated.

“Then you got this last South, this rural South that’s out in the old cotton belt. And it’s down in the Delta, and it’s down in the South Valley of Texas. And down there race and class mix a little more starkly, and the power base is mainly in rural white landowners. And that South isn’t changing as easily or as effectively. And that’s the south that went most radically Republican over the last 20 years. And down in that South, you don’t know if change is ever going to come … Sometimes progress only comes one funeral at a time. And for some of these areas it may take the passing of the last generation raised in Jim Crow before you see the challenge go away.”

From The Reading List

SCOTUS Blog: Special Feature: The Court And TheVoting Rights Act

SCOTUS Blog: Shelby County Decision In Plain English — “[Tuesday’s] decision in Shelby County v. Holder, a new challenge to the preclearance requirements, boils down to a new message to Congress: we warned you, you didn’t listen, and now it’s your problem to fix.”

NPR: Supreme Court: Congress Has To Fix Broken Voting Rights Act — “The U.S. Supreme Court on Tuesday struck down the linchpin of the landmark 1965 Voting Rights Act, freeing nine mostly Southern states from federal oversight. By a 5-to-4 vote, the court invalidated the formula — adopted most recently in 2006 — used to determine which states had to get federal approval for changes in their voting laws. The decision provoked dismay and outrage in the civil rights community.”

The New York Times: Between The Lines Of The Voting Rights Act Opinion — “The decision in Shelby County v. Holder revolves around Section 4 of the Voting Rights Act, which establishes a ‘coverage formula’ to determine which states and local governments fall under Section 5, and therefore need to get approval before changing their voting laws. The justices ruled that Section 4 is unconstitutional, and that the formula used for decades — revised and extended several times by Congress — can no longer be used to establish those “preclearance” requirements.” [INTERACTIVE]

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