Posted by Ryan Suto on August 07, 2018 in Blog

Another anniversary of the Voting Rights Act has passed without returning to the path it paved toward ensured civic opportunity. Getting back to that path will now require more work than ever.

The lifetime of the Voting Rights Act (VRA) is an important contemporary example of how America does not always improve over the course of history. The law, passed on August 4, 1965 with bipartisan support, provided for “direct federal intervention to enable African Americans to register and vote, and banned tactics long designed to keep them from the polls.” Key parts of the legislation targeted states and municipalities where institutional discrimination historically occurred, requiring them to submit any election law changes to the Department of Justice to ensure the changes were not discriminatory. The VRA was reauthorized four times during its life, most recently in 2006 under President George W. Bush with only 33 votes against the legislation in Congress.

Historian James Loewen, author of the recently re-published book Lies My Teacher Told Me, argues that one of the biggest myths taught in American history classes is that U.S. history is an automatic march toward progress. Such notions of inherent historical progress have been shaped by the German philosopher Georg Wilhelm Friedrich Hegel. Hegel viewed human history as stages of increasing freedom, with an inevitable future of an improved human condition. Loewen’s primary concern with this concept in the American context is that it “keeps us from seeing those times when we’re getting worse.” Loewen points to the period of U.S. history between the end of Reconstruction to the Civil Rights Era as a period of increased legalized and institutionalized racism in the country. The sidelining of the VRA as a bulwark against discriminatory voting laws will be viewed as another instance of reversed civic progress.

The major blow to the VRA came in the 2013 Supreme Court case  Shelby County v. Holder, a 5-4 decision, held that key provisions of the VRA exceeded Congress’s constitutional powers. The Court stated that the act was responsive to the racial conditions of the country in the 1960s when it was passed, but those conditions no longer exist. As such, the Court held that Congress no longer has the authority to review and demand changes to state voting procedures. This holding was viewed by the dissent as contradicting the text and purpose of the post-Civil War Amendments, enacted to give Congress the power “to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.”

Since the decision in Shelby County, the Brennan Center has found that states previously covered by the VRA have enacted more voter photo ID requirements and have engaged in higher rates of voter purging than states that were not covered by the VRA. That is, states that used to discriminate before the federal government intervened returned to discriminating once the Supreme Court prevented continued intervention. The Lawyers’ Committee for Civil Rights Under Law has noted that many voter suppression policies now occur at the local level and are more subtle, including limiting voting hours and closing voting locations in minority neighborhoods.

While bills currently in both the House and Senate exist to restore the promise of the VRA, passage of any bill with meaningful protections is doubtful. The President has made clear his approval for voter suppression tactics, and thus his signature cannot be presumed. If the Supreme Court’s most recent term is any indication, arguments in favor of Constitutional protections against discrimination in elections will ultimately fall on deaf ears. This year the Court made clear that a history of discrimination on the part of a legislature is immaterial to present policy, the disparate racial impact of policies is unpersuasive, and state governments are presumed to act, “in good faith” and without discriminatory motives.

Ballot access is a barometer of how society views civic participation, equal opportunity, and the role of law in furthering justice. Yet in the five years since the Shelby County decision, the United States has arguably seen more racially regressive voting laws than the previous 48 years since the passage of the VRA. Indeed, the crippling of the VRA signifies a broader recession of proactive attempts at racial equality in our society. This is precisely the opposite direction of movement in equality and fairness that Hegelian thought would presume and that Americans are taught. It is perhaps no coincidence that the Black Lives Matter movement, founded to combat systemic violence and racism against Black Americans, began 18 days after the Shelby County decision, and perhaps no surprise that a majority of voters now feel that race relations have worsened during the presidency of Donald Trump.

One cannot presume the salvation of the American character to come through the passage of time alone. Spurring a Hegelian notion of inherent progress is central to the task of addressing the current chapter of American social and racial backsliding. Even if one insists that the arc of the moral universe bends toward justice, it does not bend by itself. By supporting local, state, and federal policies and politicians committed to broad and meaningful ballot access for all citizens, by doing the hard of work of democracy on a weekly basis, and by familiarizing ourselves with the barriers before our fellow Americans, we must do the bending ourselves.