The high court’s role on the Voting Rights Act

Op-ed

The Hill
By Jack Bass and Armand Derfner
06/10/09

As the Supreme Court nears the end of its term, the perceived reality is that Justice Anthony Kennedy holds the key vote in its most important case, whether the court will override the will of Congress in its 25-year extension of the Voting Rights Act.

Many media stories misreported after oral arguments that the question before the court is whether the act’s protections against racial discrimination in voting remain needed. Congress faced that question. The court faces a critically different one: whether it has any basis for overruling the determination by Congress that the need remains.

The question now is whether the Supreme Court will uphold the current law or overrule a near-unanimous act of a co-equal branch of government. After months of hearings and hundreds of witnesses, two years ago the House voted 390-33 and the Senate 98-0 to extend the law for another 25 years.

Our interest has a personal component. One of us 40 years ago argued the first Section 5 case before the Supreme Court. The other wrote Unlikely Heroes, a book about a small band of lower-court Southern judges — mostly Eisenhower Republicans — who developed the principles on which Section 5 of the Voting Rights Act was based.

We agree with the overwhelming expression of Congress that Section 5 remains needed. For those areas where a history of racial discrimination in voting is most deeply embedded, it serves as a powerful deterrent. In such covered jurisdictions, Section 5 requires pre-clearance either from the Justice Department or the U. S. District Court in Washington, D.C., to determine whether any changes in election laws are discriminatory “in purpose or effect.” It affects “any voting qualification or prerequisite to voting” or “practice or procedure with respect to voting.”

In our state of South Carolina, action in the state legislature this spring clearly demonstrates the need for retaining Section 5. Shortly before the Supreme Court heard the current case, the state’s Republican-controlled House of Representatives moved to amend a bill intended to ease early voting into one that would significantly restrict it. In last year’s record turnout, the early voters were disproportionately African American hourly wage-earners.

On party-line voting in the House Judiciary Committee, Republicans reduced such voting prior to an election from 30 days to three and limited it to mailing in a paper ballot. It eliminated the current option of machine voting at county voter registration offices. The measure went to the full House and received a first reading.

But as the Supreme Court hearing on Section 5 began drawing attention, a strange thing happened. The Republican leadership blocked floor debate, and the measure has been carried over until next year. If Section 5 becomes dead and buried and the legislature passes the bill with its clearly discriminatory effect, it becomes law automatically.

So now back to Justice Kennedy. In his capacity as a Court of Appeals circuit judge, he once attended a special ceremony in New Orleans that honored judges Elbert P. Tuttle and John Minor Wisdom, the leader and the scholar respectively of the old 5th Circuit Court of Appeals.

They and their cohorts developed the “freezing principle” on which Section 5 was based, ordering recalcitrant voter registrars to apply to black applicants the same qualifications used for registering the least qualified white voter. With the Voting Rights Act, Congress provided a mechanism to deal with attempts to dilute as well as deny the black vote.

Judges Tuttle and Wisdom and their like-minded cohorts took literally their oath of office to “administer justice,” a word they came to define as the absence of injustice. The degree to which Justice Kennedy identifies with those judges will have profound consequences.

At one level, it would determine whether today’s Supreme Court considers itself first among equals by overruling a near-unanimous mandate of Congress. At another, it would signal a return to the court’s little-known and shameful record of the late 19th century of providing for and sanctioning the path of Jim Crow. It would put the Roberts Court on a trail comparable to that of such luminaries a century ago as Chief Justices Morrison Waite and Melville Fuller. They presided over a Supreme Court that authorized both rigid racial segregation and disfranchisement that left African Americans in the South as legally inferior citizens without protection of the law.

Bass is professor emeritus of humanities and social sciences at the College of Charleston in South Carolina. Derfner practices civil rights law and teaches it at the college