The right to vote is guaranteed by the states, not the federal government. That’s a fact that seems inconsequential in a democracy as open as ours, but it helps account for the United States’s shameful history of disenfranchisement and discrimination. After the Civil War, states had wide latitude to determine who was eligible to vote. The ex-Confederate states used poll taxes and literacy tests to disenfranchise black citizens, circumventing the ban on (outright) racial discrimination at the polls. No woman in the United States could vote until 1869, when solitary Wyoming passed legislation for female suffrage.
Luckily, the federal government actually has a vigorous mechanism for protecting franchise for all: the Voting Rights Act of 1965. Section 4 of this landmark law identifies states and counties that have historically discriminated at the polls. Section 5 stipulates that whenever one of these “covered areas” changes its voting rules, the Department of Justice must give its blessing. The federal government has the power to stop a discriminatory voting law from taking effect. When Congress reauthorized Section 5 in 2006, they did so by the paramaters set forth in Section 4.
Shelby County v. Holder is a complex case, invoking questions of federal authority over states and the legacy of Jim Crow racism. Shelby County, Ala., claims the Act’s “triggers,” which determine which areas are under the Justice Department’s jurisdiction, are overly broad, do not reflect the progress the South has made since the 1960s, and infringe on the right of states to self-govern. The government will argue that Shelby County, and others like it, are covered for a reason: they have a long history of electoral racism which might well get worse without the Voting Rights Act’s safeguards. Shelby County will counter that such a speculation does not withstand Constitutional scrutiny.
Shelby County’s argument isn’t entirely unreasonable, but for the Court to eviscerate the most effective civil rights law in American history would be a national disgrace. Such a ruling would mark a return to an era when precious Constitutional rights were not enforced. It would amount to a narrowing of citizenship for millions of Americans, their inalienable equality laid bare for unscrupulous state legislators to pick at.
The right to vote is under attack—today. States across the nation have passed laws requiring would-be voters to present a photo ID card at the polls—an onerous requirement which disproportionately affects people of color. In states like Ohio and Florida, legislatures have sought to make the act of voting harder by shortening early-voting periods. This led overwhelmed precincts on Election Day, 2012; a study estimates that hundreds of thousands of Floridians were kept away from the polls by long lines. These laws were passed by Republican lawmakers to abrogate the rights of Democratic voters—disproportionately people of color. It is a cynical campaign which resembles the state-sponsored discrimination of centuries past.
The Voting Rights Act allows the federal government to zealously protect the right to vote from those who would restrict it. Over the past two years, Attorney General Eric Holder has used his department’s Section 5 prerogative to block photo ID laws in South Carolina and Texas, claiming they function like poll taxes, disenfranchising thousands.
If the Court strikes a blow against the civil rights of American citizens, Congress can do two things to rebound. It can rewrite the Voting Rights Act with a narrower, more current formula for which areas should be covered. This will ensure that the attention of the Justice Department goes where needed, and will likely satisfy Court review. Second, Congress can begin the process of ratifying a new Constitutional amendment that will unequivocally, and positively, assert the right of all Americans of age to vote. It can federalize the franchise. A constitutional right to vote would be an unshakable guarantee.
Access to the franchise should not be a partisan issue, or a target for those who resent federal power. It should be the cause of all Americans who cherish their rights, the rights of their fellow citizens, and the health of their democracy. We have journeyed far from our evil past. May we never return.