IU experts reflect on Voting Rights Act at 50

Fifty years ago today, President Lyndon B. Johnson signed the Voting Rights Act of 1965, calling it “a triumph for freedom as huge as any victory that has ever been won on any battlefield.” And he wasn’t stretching the truth by much, according to Indiana University legal experts.

“It was a powerful and remarkable piece of legislation,” said Timothy Lovelace, associate professor in the IU Maurer School of Law. “The effect was the creation of thousands of new African-American voters. And not just voters; it also impacted the number of black elected officials.”

President Lyndon B. Johnson signs the Voting Rights Act on Aug. 6, 1965.

President Lyndon B. Johnson signs the Voting Rights Act on Aug. 6, 1965. (White House photo).

The 15th Amendment to the Constitution, ratified in 1870, was supposed to guarantee the right to vote for black men. But local jurisdictions, especially in the South, routinely used poll taxes, literacy tests and other methods to prevent voting. And challenging those tactics in court was an uphill battle.

That changed with the Voting Rights Act, which prohibited racial discrimination in voting and included detailed provisions allowing the federal government to enforce the right to vote.

“It was a sea change in our nation,” said Luis Fuentes-Rohwer, professor and the Harry T. Ice Faculty Fellow in the Maurer School of Law, who has written extensively about the law. “It was effective; there’s no question about that.”

Fuentes-Rohwer said the law worked for decades because the three branches of government cooperated to support its provisions. Even when President Richard Nixon backed away from civil-rights enforcement as part of his Southern Strategy, the Supreme Court held fast to the law. But no longer.

“That cooperative era is clearly over,” Fuentes-Rohwer said. “The Supreme Court is not interested in playing along any more. They think the act has served its purpose. A majority of members think the mission’s been accomplished and it’s time to go home.”

The key turning point came in in 2013 with the Supreme Court’s decision in Shelby County v. Holder, which ruled unconstitutional a provision of Section 5 of the act, requiring certain Southern states and jurisdictions to receive federal “pre-clearance” to enact significant changes in voting.

Chief Justice John Roberts said the law was designed for a different era and could no longer be justified. “Our country has changed,” he wrote. “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.”

The IU professors say it’s ironic that conservatives, who typically decry “judicial activism” and argue that courts should defer to legislators, overturned a law with strong legislative support. When Congress last reauthorized the Voting Rights Act in 2006, the votes were 98-0 in the Senate and 390-33 in the House.

“The majority on the Supreme Court deviated from a well-established tradition of judicial deference,” Lovelace said. “They did not take into full account the congressional record and the widespread, bipartisan support for reauthorizing the act.”

Recent cases suggest the Voting Rights Act may have a bit of life left. On Wednesday, a federal appeals court ruled that a Texas voter identification law violated the act because it had a disparate impact of discouraging voting by blacks and Latinos. A similar case is being considered in North Carolina.

But the same legal logic that killed Section 5 of the Voting Rights Act is likely bad news for other provisions of the law, said Fuentes-Rohwer, who writes about the issue in The New York Times.

“The act is on its last legs,” he said. “It’s dying.”

Both he and Lovelace said it may be time for voting-rights advocates to turn back to the political arena, rather than the courts, to strengthen access to the polls. They point to North Carolina’s Moral Mondays movement and to a current NAACP voting-rights march from Selma, Ala., to Washington, D.C.

Just as it took the civil rights movement to get the Voting Rights Act approved in 1965, they said, it will take a political movement to get lawmakers to expand access to registration and voting for all Americans regardless of race or ethnicity.

“Think about American history,” Fuentes-Rohwer said. “It’s never been any other way.”

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