Our country’s laws represent our values and our moral compass as Americans. They set norms, define transgressions, and mete out consequences for actions. And almost 50 years ago, our nation realized the harassment, intimidation, bureaucratic shenanigans, and violence so many African-Americans and other minority communities experienced when trying to exercise their rights to vote and participate in our great democracy. Our intolerance of such injustice led to the passage of the Voting Rights Act of 1965 — a great triumph in the defense of life, dignity, and equality.
Notwithstanding the near-universal praise the Voting Rights Act has received for ending some of the most overt discriminatory practices in our country’s voting history, there are some saying the Voting Rights Act’s time has passed. In fact, on Wednesday, the Supreme Court will hear oral arguments from Shelby County, Ala., that a key provision of the Voting Rights Act is unconstitutional and should be struck down. These arguments are misguided. The Voting Rights Act remains a vital piece of our national moral commitment never to permit racial discrimination in elections again.
The Voting Rights Act does a number of things. It outlaws literacy tests in specific areas, appoints federal examiners in certain problematic areas to register voters and monitor elections, and criminalizes voter intimidation, threats, and coercion. The Act also sets up a “preclearance” process that requires certain places with the worst histories of discrimination to gain approval from a federal court or the Department of Justice before making election changes. These jurisdictions must prove that any change was not designed for, or have the effect of, discriminating against minority voters.
This procedure makes sense to me. A just government is an institution — like the church and the family — that is ordained of God. We wouldn’t be very good stewards of that institution if we allowed racial discrimination to fester in our political processes until some private litigant mustered up the resources to challenge all of the discriminatory practices on a one-by-one basis. The preclearance provision, known as Section 5, ensures that we stamp out discriminatory laws before they harm voters of color at the ballot box. And Section 5 is the part of the Voting Rights Act that is under attack.
When the lawyers square off in front of the Supreme Court on Wednesday, there will be much talk of dry and technical legal terms like “congruence and proportionality” and “coverage formula.” In my mind, the legal issues are easy. The 15th Amendment to the Constitution gives Congress the power to enact laws to prevent racial discrimination in voting, and in 2006, Congress voted to continue the preclearance process with a near unanimous vote — 98-0 in the Senate and 390-33 in the House. The hard part is explaining to our citizens why, with all of the challenges our country is facing, some folks are working so hard to end a proven and effective tool in the fight to end racial discrimination in America. There is no dispute that our country has come a long way since the days of Jim Crow, and we should be proud of that progress. But we still have discriminatory election practices today. Just last summer, for example, a three-judge federal court concluded that the state of Texas intentionally discriminated against minority voters in their redistricting process. Not accidentally. Intentionally.
The faithful are called to serve others and our communities. Voting and political participation is one way of doing that. When racial discrimination prevents eligible Americans from participating in our democracy, that racial discrimination does not just silence one citizen’s voice, it interferes with a servant of God performing her or his duties to others. That interference is morally unacceptable, and under the Voting Rights Act, it is also legally unacceptable.
Myrna Pérez is Senior Counsel in the Democracy Program at the Brennan Center for Justice at NYU School of Law.
Photo: Supreme Court Building,