Why ‘Selma is Now’

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John Legend and Common giving acceptance speech

John Legend and Common giving their Academy Award acceptance speech.

Richard Hasen
University of California, Irvine
When singer-songwriter John Legend recently declared “Selma is now” at the Academy Awards, we could perhaps chalk it up to poetic license. After all, states no longer use literacy tests or poll taxes to stop African-Americans from voting, black voter registration rates equal or exceed those of whites even in Alabama and racial violence at the voting place is thankfully rare throughout the United States.

But Legend, who won the Oscar with the artist Common for their song Glory from the film Selma, is right: the promise of the Selma marches 50 years ago, chronicled in the film and which helped spur passage of the Voting Rights Act (VRA), remains partially unfulfilled. And unfortunately, we can no longer count on either Congress or the Supreme Court to fully protect voting rights. The new battlegrounds are state legislatures, local governments and the public square.

For decades, Congress — on a bipartisan basis — and the Supreme Court were partners in furthering voting rights. Congress passed a tough VRA which eliminated literacy tests and many other barriers to registration and voting. Among its most important provisions was Section 5, which required states and localities with a history of racial discrimination in voting to get federal approval, or “preclearance,” before making changes to voting rules which could make minority voters worse off. The Supreme Court upheld Congress’s power to impose this serious limitation on state sovereignty given the record of persistent and pernicious efforts in (mostly Southern) states to block African-Americans from the polling place.

Congress later extended and strengthened the provisions of the VRA, including the 1982 passage of a revised Section 2 of the VRA, which has been instrumental in forcing the creation of dozens of “majority-minority” voting districts throughout the country. African-Americans, Latinos, Native Americans and others now are more likely have the same opportunity as white voters to participate in the political process and to elect representatives of their choice. Once again, the Supreme Court was a partner, setting the parameters for successful Section 2 claims.

By the 2000s, voting rights advocates could no longer count on the Supreme Court to vigorously enforce the VRA.
But after these significant successes, things have changed, in part as white conservatives abandoned the Democratic party in the 1970s and 1980s and as African-Americans and other minorities flocked to the Democratic party. What once was solely a struggle for racial justice has now also taken on the air of a partisan struggle.

By the 2000s, voting rights advocates could no longer count on the Supreme Court to vigorously enforce the VRA. The court read the VRA’s provisions narrowly, recognized a new claim of “unconstitutional racial gerrymanders,” and then in the 2013 Shelby County v. Holder case held unconstitutional the formula used to decide which jurisdictions were subject to federal preclearance. According to the Supreme Court, the preclearance provisions infringed on state sovereignty because the formula was not tied to current conditions of racial discrimination. As of now, the conservative, Republican-appointed justices in the court’s majority have adopted stingier views of voting rights while the more liberal, Democratic-appointed justices in the minority have adopted a broader view.

A sea change has come to Congress as well.  As late as 2006, Congress appeared to come together on a bipartisan basis to renew provisions of the VRA. But a partisan battle was just beneath the surface. Although the Senate approved the 2006 amendments 98-0, the Republican majority on the Senate Judiciary Committee issued a report suggesting the renewed act’s preclearance provision was unconstitutional.

The current chair of the House Judiciary Committee, Representative Bob Goodlatte (R-VA), will not even hold a hearing on the Voting Rights Amendment Act.
Then, after Shelby County, almost no Republicans took up the Supreme Court’s offer to rework a new formula to impose preclearance in those places where voting rights still are a problem. The current chair of the House Judiciary Committee, Representative Bob Goodlatte (R-VA), will not even hold a hearing on the Voting Rights Amendment Act.

At this point, with issues of voting rights tied into partisan politics, it is unrealistic to expect much relief from either the Supreme Court or Congress. Further, in many states Republican legislatures have been passing laws, such as voter identification and stricter registration provisions, making it harder to register and vote. So far, courts have a mixed record of reviewing these claims, and while there have been some successes, those expecting the Supreme Court to again protect minority voting rights may well be disappointed.

These days, fulfilling the promise of Selma will require not just litigation but political action on the state and local level to fight against restrictive voting rules and for expanded voting opportunities. Longer term, the promise depends upon electing members of Congress who will support expanded voting rights regardless of their political party, and ultimately creating the political conditions where there are a majority of Supreme Court Justices willing to strongly enforce voting rights protections.

The views expressed in this post are the author’s alone, and presented here to offer a variety of perspectives to our readers.

Richard Hasen is chancellor’s professor of law and political science at the University of California, Irvine. Hasen is a nationally recognized expert in election law and campaign finance regulation, and is co-author of a leading casebook on election law.
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