The celebrations of the Selma voting rights march 50 years ago noted how unthinkable it was that a Black President would be addressing them. Actually, it may have been no less unthinkable that a White Southern President seized the moment, a half century ago, to deliver the most stirring civil rights speech ever delivered to Congress.
Some fans of Justice Sonia Sotomayor have recently dubbed her “the people’s justice.” But if her dissent in Schuette v. BAMN is any indication, she doesn’t seem to really like the actual people. And unfortunately for popular government, her colleagues on the bench do not seem very friendly either.
In Schuette, the Supreme Court held that the Constitution did not prohibit the people of Michigan from adopting a constitutional amendment banning governmental racial discrimination, including racial preferences. The Court’s decision overturned a Sixth Circuit decision invalidating the ban.
W. B Allen’s essay impresses upon us how different our understanding of civil rights is from that of the Founders and the authors of the Fourteenth Amendment. Back then “civil rights”referred to our most fundamental rights, those closely tied to and only slightly more expansive than our natural rights. Today most of us think of the right to vote as one of our most important civil rights, the one that protects all the others. But in 1870 Congress enacted the Fifteenth Amendment to protect this central political right, which was generally assumed not to be covered by the Fourteenth. Since the…
In Shelby County v. Holder, decided this June, the United States Supreme Court struck down Section 4 of the 2006 Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act (“2006 VRA”). Section 4 of the VRA provides a coverage formula for nine states as well as counties in six additional states that must seek “preclearance” for any changes to their electoral practices under Section 5 of the VRA from either the federal Department of Justice or a three-judge Federal District Court in Washington DC.
One of the defects of public discussion of the Supreme Court is that journalists who are so enamored of process stories in electoral contexts cut straight to the bottom line—who won, who lost—and skip the constitutional reasoning where the judiciary is concerned. That was how one of the biggest jurisprudential stories of last week—the extraordinary whiplash judges and partisans on both sides displayed between Tuesday’s ruling on the Voting Rights Act and Wednesday’s on DOMA—got overlooked. Call it a tale of two laws, each passed by overwhelming legislative majorities, one gutted by the Court’s conservatives, the other overturned by the Court’s liberals (the evanescent Justice Kennedy counts as both), each of whom accused the other of activism and called for restraint—all within 24 hours, and passing virtually without remark. Those who hope for a consistent ethic of judicial restraint—which is to say those who haven’t been paying attention—will have to wait for another term.
Buoyed by a significant victory in the Supreme Court on January 20, Texas officials were hopeful that they could craft a settlement to protracted litigation over their congressional and legislative redistricting map so that Texas could hold its primary as originally scheduled on Super Tuesday, March 6. But the cards still held by the objectors under the Voting Rights Act (VRA) were sufficient to prevent agreement, and so a federal court indicated last week that Texas would have to move its primary.
Texas would have been the most delegate-rich state in the Super Tuesday primary, with 155 GOP delegates. Instead, Texas voters will likely have to wait until at least May 29, when the Republican primary contest may be effectively decided. This is just one example of the mischief the VRA creates with its convoluted proscriptions that invite litigious rent-seeking.
As Anthony Peacock recently explained in this space, the VRA has two troublesome provisions that make redistricting a headache in a state like Texas.
The Supreme Court has replaced the Constitution’s principle of the individual’s right to vote with a right to equal representation for minority groups. This post investigates the central moments of this shift in doctrine and practice.
The Voting Rights Act of 1965 was arguably the most successful piece of federal legislation of the twentieth century. It was also one of the most principled, finally providing African Americans voting rights they were originally promised by the Fifteenth Amendment almost 100 years earlier.
Following passage of the VRA black voter registration rates in southern states, where voting discrimination was most pronounced, skyrocketed. Between 1965 and 1968 black registration rates went up almost tenfold in Mississippi, threefold in Alabama, and twofold in Louisiana and Georgia. South Carolina and Virginia also experienced large increases in black voter registration. The result was a transformation in southern politics. No longer were bald appeals to racism politically profitable. Black voters were now a force to be reckoned with in the South and soon so too were African American representatives. American politics would be changed forever as a result of these developments. They were all highly defensible as a matter of constitutional principle and political practice.
But in 1969 things changed. That year the United States Supreme Court, in Allen v. State Board of Elections, expanded the mission of the VRA from protecting the right to vote to protecting a right to representation for African Americans. As understandable as the outcome was in Allen—the Mississippi legislature appeared to be trying to dilute the votes of African Americans by submerging them in at-large elections—it revolutionized the purpose of the VRA. Allen gave birth to what scholars refer to as “second generation” voting rights; the right to an “undiluted” vote or to representation for legally recognized minority groups.
