Voting Rights

The Supreme Court’s Ruling and the End of the Civil-Rights Era

Today’s Supreme Court decision was monumental in that it essentially finds discrimination has all but disappeared at the polls. It’s a big deal, and dead wrong, writes Adam Winkler.

06.25.13 4:16 PM ET

Sixty years ago the civil-rights era took off when a cadre of NAACP Legal Defense Fund lawyers brought a challenge to racial segregation in Topeka, Kansas, public schools. That challenge resulted in perhaps the most important Supreme Court decision in American history, Brown v. Board of Education. Buoyed by that victory, advocates for equal rights for racial minorities fought and eventually won passage of what’s been called the most important piece of civil-rights legislation ever passed by Congress, the Voting Rights Act of 1965. Today, almost half a century later, the Supreme Court once again weighed in on civil rights. Only this time, the court, in a bitterly divided 5-4 ruling, struck down a key provision of that landmark voting law.

Are we witnessing the end of the civil-rights era?

The act has two main provisions, known as Section 2 and Section 5. Section 2, which was not at issue in today’s ruling, prohibits any state from adopting any law, practice, or voting procedure that denies or abridges the right to vote on account of race. Section 5 provides that states, cities, and counties with a history of racial discrimination in voting rules must first “preclear” any changes in their voting systems with the Department of Justice or a special court in Washington. Section 5 was in many ways more effective than Section 2. Section 2 violations are difficult to prove, and plaintiffs can only bring a case after the fact. Section 5, by contrast, works as a prophylactic measure, stopping discrimination before it can occur. Jurisdictions with a proven track record of racial discrimination can’t so much as move a polling place without first obtaining approval from Washington.

Today’s decision technically leaves Section 5 standing, but strikes down the formula for determining which jurisdictions need to preclear their changes. In practice, however, the court has gutted preclearance. There is almost no chance Congress will adopt a new formula, so arguably the most important provision in the most important civil-rights law ever adopted has been effectively overturned.

Writing for the majority, Chief Justice John Roberts insists that “things have changed” since the Voting Rights Act was first adopted. Minority voter-registration rates in the South and the handful of other covered jurisdictions are similar to rates elsewhere, and minority candidates are often elected in these covered jurisdictions. Of course, this begs the question: Are those jurisdictions no longer inclined to discriminate—or have they been prevented by the preclearance procedure from doing so?

The chief justice recognizes the dilemma. “There is no doubt that these improvements are in large part because of the Voting Rights Act.” Nonetheless, he writes, Congress should have watered down the law and made it easier for states to implement changes to their voting systems. Otherwise, we’d be left with a situation in which the law “would be effectively immune from scrutiny.”

Not really. Congress is required to reauthorize the Voting Rights Act periodically, which inevitably entails exercising some scrutiny of the law. The representatives and senators from covered jurisdictions can persuade their colleagues that the law is no longer required. Yet, judging from the vote to reauthorize the law just six years ago, which was 98-0 in the Senate, even senators from the Deep South believed the law is still necessary.   

In dissent, Justice Ruth Bader Ginsburg argues that covered jurisdictions still attempt to implement discriminatory voting rules. Among the examples she cites are a Georgia city’s redistricting plan that was designed to limit minority voting strength after the 2000 census, a Mississippi town that in 2001 canceled an election after African-American candidates announced that they were running for office, and a 2003 attempt by a South Carolina county to switch to at-large elections after African-Americans won a majority on the school board. We might add to her list the spate of voter ID-laws enacted in recent years, predominantly in the Old South, that would have a disparate impact on minority voters.

Even if the dissent has the better argument, the majority has issued a landmark decision that historians are sure to analyze for decades. Indeed, they may look back at the past year as a major turning point in the story of civil rights in America. Barack Obama, the first African-American president, was reelected, indicating that racial hostility toward minorities is ebbing. While race-based affirmative action survived Supreme Court scrutiny this week, the court in two other cases made it more difficult for victims of discrimination to seek redress through the courts. And now the Supreme Court has severely weakened one of the most important pieces of remedial civil-rights legislation ever enacted by Congress.

This isn’t to say that racism is dead in America. All we need are situations like the Trayvon Martin killing to be reminded of how close to the surface racial attitudes—and often racial hostilities—are. Yet Supreme Court cases and presidential elections are the kind of broad social markers that historians traditionally emphasize. They may well look at this year and today’s case as the moment when the African-American civil-rights era came to an end.