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Ruth Bader Ginsburg Lost Her Battle to Save Voting Rights. Here’s How We Can Take Up the Fight and Honor Her Legacy

8 minute read
Vance is distinguished professor of the practice of law at the University of Alabama, a former U.S. Attorney for the Northern District of Alabama and an NBC News and MSNBC legal analyst.

Justice Ginsburg’s dissents were often even more powerful than her voice when she was in the majority. She described them as “appealing to the intelligence of a future day.” She never stopped believing in that better future or that the law provided a vehicle for moving the country forward.

This was never truer than when she found herself in the minority in the voting rights case, Shelby County v. Holder, joined by Justices Breyer, Sotomayor and Kagan. The majority opinion rolled back the 1965 Voting Rights Act’s protections and permitted states, including those with histories of racially motivated voter suppression, to change their voting procedures without any outside oversight. Justice Ginsburg knew what that meant and refused to pretend it wouldn’t erode the advances made under the act.

The case’s legal underpinnings are somewhat complicated but worth tracing. Shelby County, Ala., just south of Birmingham, sued then-Attorney General Eric Holder in federal court in the District of Columbia in April 2010, arguing parts of the Voting Rights Act were unconstitutional. The district judge disagreed, ruling that the act would stay in force. The Court of Appeals affirmed.

The Voting Rights Act was enacted to ensure no citizen would be denied the right to vote because of race or color. It created a “coverage formula” that applied to states and political subdivisions with a history of significant discrimination against Black voters in the 1960s and 1970s. This discrimination included impossible literacy tests, administered only to Black people and poor white people and devices like Mississippi’s notorious soap-bubble test, which required Black voters to correctly guess the number of bubbles in a bar of soap in order to vote. The act prohibited the old discriminatory tests and devices and required those jurisdictions to submit any new changes in their voting procedures—closing or moving polling places, requirements for more and more limited forms of identification, reduction in early voting days, purges to voter rolls—to either the Justice Department or the district court in the District of Columbia for approval before they enacted them, a process called preclearance.

When the act was passed in 1965, the covered jurisdictions included the states of Alabama, Georgia, Louisiana, Mississippi, South Carolina and Virginia. Thirty-nine counties in North Carolina and one in Arizona fell within it. Additional jurisdictions were added to the act in subsequent years, for instance in 1975 when Congress added coverage in some jurisdictions that only offered ballots in English.

In finding the act unconstitutional and ending the preclearance requirement for the covered states and counties, Chief Justice Roberts held that the “blight of racial discrimination in voting” that had “infected the electoral process in parts of our country for nearly a century,” and which the act was designed to address, had been ameliorated by 2013.

On the same day in February 2013 that lawyers for Shelby County appeared before the Supreme Court and argued that discrimination in voting was a thing of the past and that intentional discrimination had disappeared, a friend of mine had business in the Shelby County Courthouse. He had forgotten he had an old coin in his pocket that he’d shown to a friend and had to take it out as he went through security. The courthouse security guard, a white man, looked at the coin and told him, “That’s a Dixon. That’s where the name Dixie comes from.” “But,” the guard told him dismissively, “Black people will tell you it’s just about cotton.” Then, in a moment that surprised my friend enough that he shared the story with me the day the Shelby County case was decided, the guard told him that since it was Black History Month, if he wanted to see Black history, he’d take him over to the county jail, where he could see it, all lined up. The guard’s opinion was shocking. Even worse was the fact that a county employee charged with protecting the public felt comfortable sharing it with a stranger, as though every white person in the courthouse in Shelby County would share his views.

Shelby County had filed its lawsuit after one of its small cities, Calera, created a new voting plan without submitting it for preclearance that resulted in its only Black council member losing his seat. After the city was forced to redo its plan in compliance with the act, a new election was held and the council member regained his seat. Alabama also had a law that prohibited people who had been convicted of a felony from voting, which disparately affected Black people. But Chief Justice Roberts accepted Shelby County’s characterization, writing in his opinion, “There is no denying, however, that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions … Nearly 50 years later, things have changed dramatically.” Suggesting that the Voting Rights Act was no longer necessary because it had succeeded didn’t reflect the reality in many covered jurisdictions.

Justice Ginsburg understood that the act was a levee keeping a whole press of problems at bay. Even though she couldn’t, as a justice in the minority, prevent the evisceration of the Voting Rights Act, she devised an analogy of such power that anyone who heard it understood why it was so important to keep the act in place. “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet,” she wrote.

There was no gainsaying her logic or her prescience. Alabama implemented the voter identification act it had passed two years earlier but declined to submit for preclearance as soon as the Supreme Court decided Shelby County. Texas put in place an even stricter identification act the same day the case was decided, one that would impact predominately poor and minority voters. North Carolina followed suit and also cut back on early voting. Mississippi rolled out its own identification act, one it had submitted but not received preclearance to use. And, in the wake of Shelby County, the Court gave permission to purge voter rolls and gerrymander districts. The future Justice Ginsburg hoped to evoke in her dissents, where protection for everyone’s voting rights would be the law of the land, looked even more distant as House Republicans presented nearly unanimous opposition to HR 4, a new voting rights act that passed the House in 2019, and the Senate refused to hold a floor vote on the bill.

The Voting Rights Act was originally passed for only five years, but it was renewed with strong bipartisan majorities and during Republican administrations in 1970 (Nixon), 1975 (Ford), 1982 (Reagan) and 2006 (Bush). On each occasion, Congress recognized that while selecting a candidate to vote for is a political choice, the act of voting itself is fundamentally American, a quintessential right that must be protected for all citizens. Justice Ginsburg took the majority to task for failing to honor that tradition, when she announced her opinion in Shelby County, quoting from Dr. Martin Luther King Jr., but adding her own emphasis, “The arc of the moral universe is long…but it bends toward justice if there is a steadfast commitment to see the task through to completion.”

Chief Justice Roberts’ assessment in 2013, that the days of discrimination in voting were behind us, has been conclusively disproven by subsequent events, but his words are still the law of the land. We face serious challenges in voting ranging from foreign interference to suppression to gerrymandering to delayed results due to mail-in voting because of the pandemic. Those problems may seem overwhelming. But the woman who saw them and the future, if the Voting Rights Act was gutted, with such clear foresight would not have given up. She would have persisted, like she did when she took on inequity against women in the early part of her career. There are important jobs for each of us. We can register and vote early to take pressure off the polls during the pandemic. Healthy, low-risk people can volunteer as poll workers or watchers. The measure of how much each vote matters is that there are people who try to prevent some of us from casting ballots. We need a steadfast commitment to guaranteeing the right to vote for all Americans, no matter who they vote for. And a new voting rights act would honor Justice Ginsburg’s legacy. She would want us to keep the umbrella open.

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