Section 5 applied to jurisdictions that had a history of racial discrimination. States or political subdivisions were placed under that provision of the Voting Rights Act if they restricted voting, had less than half of their eligible residents were registered to vote or less than half had actually voted in the 1964, 1968 or 1972 presidential election.
In his majority opinion, Roberts stated, “Shortly before enactment of the Voting Rights Act, only 19.4 percent of African-Americans of voting age were registered to vote in Alabama, only 31.8 percent in Louisiana, and only 6.4 percent in Mississippi. Those figures were roughly 50 percentage points or more below the figures for whites.”
He said that has changed dramatically.
“There is no denying, however, that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions. By 2009, ‘the racial gap in voter registration and turnout [was] lower in the States originally covered by Section 5 than it was nationwide…African-American turnout has come to exceed white voter turnout in five of the six States originally covered by Section 5, with a gap in the sixth State of less than one half of one percent.”
In her dissent, Ginsburg said, “In the Court’s view, the very success of Section 5 of the Voting Rights Act demands its dormancy.”
She said, “True, conditions in the South have impressively improved since the passage of the Voting Rights Act. Congress noted this improvement and found that the VRA was the driving force behind it.”
She said more than 15,000 pages of congressional testimony presented countless “examples of flagrant discrimination” and “intentional racial discrimination in voting remains so serious and widespread in covered jurisdictions that section 5 preclearance is still needed.”
Among the examples she cited:
In 1995, Mississippi sought to reenact a dual voter registration system;
In 2003, after African-Americans won a majority of the seats on the school board for the first time, Charleston County, S.C. proposed switching to an at-large voting system;
In 1993, the city of Millen, Ga. proposed delaying the election of a majority-Black city council district by two years;
In 2004, Walker County, Texas threatened to prosecute two Black students after they announced their intention to run for office; and
In 1990, Dallas County, whose county seat is Selma, sought to purge its voter rolls of many Blacks.
Both Roberts and Ginsburg credit the Civil Rights Movement for passage of the Voting Rights Act.
“Alabama is home to Selma, site of the ‘Bloody Sunday’ beatings of civil rights-demonstrators that served as the catalyst for the VRA’s enactment,” Ginsburg wrote. “Following those events, Martin Luther King, Jr., led a march from Selma to Montgomery, Alabama’s capital, where he called for passage of the VRA. If the Act passed, he foresaw, progress could be made even in Alabama, but there had to be a steadfast national commitment to see the task through to completion.”
Within hours after the Supreme Court decision was announced, Texas Attorney General Greg Abbott announced that a voter identification law that was blocked last year by the Justice Department would go into effect immediately and that “redistricting maps passed by the Legislature may also take effect without approval from the federal government.”
Attorney General Eric Holder indicated Tuesday that he will not curb his efforts to protect Black voters in the wake of the Shelby County decision.
He said, “The Department of Justice will continue to carefully monitor jurisdictions around the country for voting changes that may hamper voting rights. Let me be very clear: we will not hesitate to take swift enforcement action – using every legal tool that remains available to us – against any jurisdiction that seeks to take advantage of the Supreme Court’s ruling by hindering eligible citizens’ full and free exercise of the franchise.”
In his majority opinion, Roberts made it clear that the Voting Rights Act has served its purpose, in his opinion.
“Coverage today is based on decades-old data and eradicated practices,” he wrote. “The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned nationwide for over 40 years.”
At another point in his opinion, Roberts said, “But history did not end in 1965.”
In her dissent, Ginsburg quoted everyone from Shakespeare to philosopher George Santayana.
“The Court criticizes Congress for failing to recognize that ‘history did not end in 1965.’ But the Court ignores that ‘what’s past is prologue,” she said, quoting The Tempest. And ‘those who cannot remember the past are condemned to repeat it.’”