It’s time to repair Voting Rights Act

Five years ago this month, the Supreme Court eliminated one of the most effective tools for safeguarding the right to vote: It nullified Section 5 of the Voting Rights Act in its decision in Shelby County v. Holder. That decision allowed states with a proven history of racial discrimination in voting to implement changes in their voting laws and procedures without federal government approval.

The majority’s justification for its ruling was that “things had changed dramatically.” Apparently, the court felt that we had reached the point of justice toward which Dr. Martin Luther King’s moral arc of the universe bent.

Even more disturbing was the overarching message that relative progress trumps absolute needs. The court suggested not only that the literacy tests of yesteryear have no bearing on the laws of today, but also that, having cured the basest and most overt examples of racial discrimination, we no longer need worry about the more subtle — but nevertheless effective — means to stop minority voters from voting.

We have come far: The difference between apartheid and legal equality is significant. But the court mistakes significant progress for sufficient progress. It is not enough to congratulate ourselves for ending slavery or Jim Crow laws. The issue is not how far we have come from the very worst, but how close we are to the best. When you have a law that is actually working, that is stopping discrimination in voting, you do not gut it simply because some progress has been made. As Justice Ruth Bader Ginsburg observed in her dissent in Shelby, getting rid of Section 5 is like throwing away your umbrella in a rainstorm because you are not getting wet.

History since Shelby has proved Ginsburg right. States formerly subject to Section 5 acted like dogs that sprung their leashes: Several had new voter suppression efforts ready before a week was out. Others immediately started to enforce laws previously declared discriminatory. In Texas, a voter ID law that could not get court approval in 2012 was put into effect in 2013, hours after the court’s ruling. It took four more years of litigation to stop that law. By then, thousands of people, disproportionately minority voters, had been prevented from voting.

Voter registration procedures can also be used to purge the rolls of minority voters. In Georgia, an exact-match procedure to verify voter names removed almost 35,000 people from its rolls; more than 75 percent of these voters identified as minorities.

Racial gerrymandering abounds. State legislative districts were redrawn in 2011 in Texas that minimized the voices of minority voters. That law failed to get federal court approval when Section 5 was in effect, and it was found by a three-judge panel to have been originally enacted with discriminatory intent. Although just this week a legislative amendment in 2013 to the redistricting was upheld by the Supreme Court, were it not for Section 5, it is uncertain that Texas would have felt compelled to improve the redistricting legislatively in the first place.

Texas is not alone. In a case currently being litigated by the Lawyers’ Committee, state legislators in Georgia actively used the race of voters to determine how to draw state House lines in light of changing demographics around Atlanta.

Transparency of decisions was lost as a result of Shelby. Local governments have been making smaller, subtle changes that often fly under the radar. These regulatory adjustments are insidious and extremely effective in disenfranchising vulnerable voters. For example, by the 2016 presidential election more than 800 polling places were closed by counties formerly covered by the Voting Rights Act. These changes disproportionately affect minority and low-income voters.

We got rid of the umbrella and now we are getting wet.

The viscera of the Voting Rights Act lies somewhere on the Supreme Court floor, but a robust Voting Rights Act is needed more than ever. The casualties here are not just the voting rights of traditionally disenfranchised groups. Also impacted is the integrity of our democracy as a whole, which suffers with every barrier to the franchise that states and local jurisdictions erect.

We have the means to repair the Voting Rights Act. For example, the bipartisan Voting Rights Amendment Act, which aims to restore the provision nullified by Shelby, was reintroduced in Congress last summer. Laws have been proposed. All that needs doing is to pass them. In the meantime, organizations like the Lawyers’ Committee will continue to work to secure equal justice for all: we will indefatigably challenge every gerrymander, ID law and poll closure enacted with the goal of disenfranchising minorities.

However, try as we might, we cannot substitute for a strong umbrella.