Robbins: Why the Voting Rights Act is under pressure
Increasingly, the Voting Rights Act has been under pressure.
Like committed avaricious colonies of termites of a certain bent, legislators, PACs, and other operatives from the darkest recesses of the political universe have been nibbling about the edges of the act for years, hoping to one day break through to the pulpy core. And once, they seem to hope, the foundation is ultimately breached, to clap their hands with joy when the whole edifice, like the storied walls of Jericho, at last come tumbling down.
What is the Voting Rights Act and why do those who intend to bring it to its knees target their determined gnawing jaws against it?
Signed into law by President Lyndon Johnson in 1965 at the height of the civil rights movement, the Voting Rights Act was a landmark piece of federal legislation that prohibited racial discrimination in voting. Why, knocking the heel of your hand against your head, you may be asking, in light of the Civil War amendments to the Constitution, was the Act — 100 years after Appomattox — necessary?
Well, yeah.
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The simple answer is that 100 years on, racial minorities — particularly in the South — by one contrivance or another, in offending number continued to be edged out of their participation in the great experiment of democracy. Poll taxes, “literacy” tests, violence, threats of violence, Jim Crow laws, and various other, sometimes wildly creative bureaucratic obstacles, cut the legs out from under the emancipated, would-be electorate.
As initially ratified, the United States Constitution granted each state complete discretion to determine voter qualifications for its residents. After the Civil War, however, the three Reconstruction Amendments (the 13th, 14th and 15th) were ratified and limited the states’ discretion.
To enforce the Reconstruction amendments, Congress passed the Enforcement Acts in the 1870s which criminalized the obstruction of a citizen’s voting rights and provided for federal supervision of the electoral process, including voter registration. However, in 1875, in United States v. Cruikshank and United States v. Reese, the Supreme Court struck down parts of the legislation as unconstitutional. After the Reconstruction Era ended in 1877, enforcement of these laws became erratic, and in 1894, Congress repealed most of their provisions.
As could have been predicted, disenfranchisement followed. From 1868 to 1888, electoral fraud and violence throughout the South suppressed the African American vote. From 1888 to 1908, Southern states legalized disenfranchisement by enacting Jim Crow laws. They amended their constitutions and passed legislation to impose various voting restrictions, including literacy tests, poll taxes, property-ownership requirements, moral character tests, requirements that voter registration applicants interpret particular documents, and grandfather clauses that allowed otherwise ineligible persons to vote if their grandfathers voted (which excluded many African Americans whose grandfathers had been slaves or otherwise ineligible).
During this period, the Supreme Court generally upheld efforts to discriminate against racial minorities. In Giles v. Harris (1903), for example, the court held that regardless of the 15th Amendment, the judiciary did not have the remedial power to force states to register racial minorities to vote.
Before the act’s enactment in 1965, several efforts were made to stop the disenfranchisement of Black voters by Southern states, but none of them held. Not until the Voting Rights Act became law was equality in voting the reality contemplated by emancipation following the war.
Amended five times since its passage to expand its protections, the Voting Rights Act was intended and designed to enforce the voting rights ensured by the 14th and 15th Amendments to the Constitution. Specifically, it sought to secure the right to vote for racial minorities throughout the country, especially in the South.
According to the U.S. Department of Justice, the Voting Rights Act is considered to be the most effective piece of federal civil rights legislation ever enacted in the country. It is also one of the most far-reaching pieces of civil rights legislation in U.S. history.
So, why the accelerating attempt to now subvert it?
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The simple answer lies in politics. As certain blocks of voters tend to lean one way or the other, at least some of those against whom they lean would rather see them excluded than try to win them over. It is the simple tyranny of numbers and, however, couched in virtue, attempts by those who would undermine the Voting Rights Act to overcome the calculus by exclusive legislation rather than by ideas or effort.
Despite the relentless and increasing assault, the Voting Rights Act has, so far, weathered the attack and still stands as a beacon and testament to the Great Society that the statesmen of the middle-20th Century perceived and enshrined in its adoption.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or at his email address: Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at fine booksellers. And coming soon, “He Said They Came From Mars.”
