The 2016 election will be the first presidential contest in 50 years without the full protection of the 1965 Voting Rights Act. It is unclear what that will mean for the country’s electorate.
“We’re at the face of a precipice and we don’t know what’s next,” Luis Fuentes-Rohwer, professor of law at Indiana University Maurer School of Law, told Notre Dame Law students recently. “The Court essentially neutered the Voting Rights Act.”
Fuentes-Rohwer spoke with students at an event hosted by the American Constitution Society.
In Shelby County v. Holder, the U.S. Supreme Court struck down a section of the Voting Rights Act that required states with the longest history of voter suppression and discrimination to get approval from the federal government before changing their voting laws.
Section 5 of the Voting Rights Act required that certain jurisdictions with a history of racial discrimination, including most southern states, submit any changes to their election systems to the U.S. Justice Department for “pre-clearance.” The Justice Department had the authority to block changes that would leave voters of color worse off than before. In 2013, the Court ruled that the formula used by Congress to decide which jurisdictions were covered under the law, known as Section 4b, violated the Constitution.
As a result, strict voter-ID laws and other restrictions that could make it harder for certain demographics to vote — minorities, low-income citizens, and the elderly — passed in jurisdictions formerly covered by the law, including Mississippi, Alabama and North Carolina. These laws include the ban on voter-registration drives, eliminating same day registration, requiring photo identification, and reducing early-voting periods.
“Was subjecting only certain states to the pre-clearance requirement of Section 5 of the Voting Rights Act constitutional?” Fuentes-Rohwer asked the students. He agreed that the action was subject to much debate.
“If you think this was pushing hard against constitutional norms, you would be correct,” he said. But, as he explained, the Warren Court examined the law with a deferential posture and allowed the political process to run its course. The important question at the heart of the act is one of institutional responsibilities. Who should decide whether we continue to face the blight of racial discrimination in voting? Should it be Congress, or should it be the Supreme Court?
The impact of the Voting Rights Act is clear, he said, even though the section could be questionable. Southern states saw a dramatic increase in the number of African-Americans registered to vote and elected into public office, after the law passed. Other minorities also shared in its provisions. Later amendments to the act required the presence of voting material for citizens whose primary language was not English, and assistance for voters who were blind, disabled, or illiterate.
The absence of Section 4 from the law will have a big impact on who has the right to vote, Fuentes-Rohwer said. The Fifteenth Amendment of the Constitution prohibits federal and state governments from denying a citizen the right to vote based on that citizen’s race, color, or previous condition of servitude. Fuentes-Rohwer said he worried that, without the section, that amendment loses its power.
“The lesson here is that the Fifteenth Amendment is just paper and the Constitution is simply paper,” he said. “Rights are only rights when the political process decides to enforce them.”