Joyce Ladner was a senior at Tougaloo College in Jackson, Miss., in the early 1960s when she failed the voter registration literacy test for the third time. But she said she already knew the registrar would not pass her because she was black.
And aside from questions like, “How many grains of salt are in a quart jar,” one stood out to her and she knew her answer would not sit well with the registrar. “What are the characteristics of a good citizen?” she read. Her response: “One who follows just laws and disobeys unjust laws.”
Ladner later registered under a court order and helped others exercise that same right by working as a field organizer with her sister Dorrie Ladner and South Carolina native Cleveland Sellers in the Student Nonviolent Coordinating Committee (SNCC).
On Aug. 6, 1965, after years of tumultuous violence and lives lost, President Lyndon B. Johnson signed the Voting Rights Act. The act prohibits the denial or abridgement of the right to vote with tactics like literacy tests. Section 5 of the act requires jurisdictions like South Carolina with a history of voter discrimination, outlined in Section 4(b), to have any voting changes approved by the U.S. attorney general or the U.S. District Court before implementation. This is also known as preclearance and its purpose is to ensure those changes are not discriminatory.
While Ladner, a Mississippi native now living in Florida, said she felt passage of the act was a joyous occasion for her and others who risked their lives to register blacks to vote, she knew in 1965 that it was not the end.
“We knew it wasn’t going to solve all the problems, but we had legal backing,” Ladner said.
Now, almost 48 years after the act was passed, many aspects of voting rights are still not settled. The Supreme Court soon is expected to decide in Shelby County v Holder whether Congress’ decision in 2006 to extend Section 5 of the Voting Rights Act to 2031 is constitutional under the constraints of Section 4(b). The case was argued before the Court on Feb. 27 and is likely to be decided before the close of the session this month. The pending outcome has some Americans, especially those living in the South, asking whether the country has progressed to the point where preclearance is outdated.
Shelby County, Ala., filed suit in district court in April 2010 for a permanent injunction against the enforcement of Section 5 and Section 4(b), which the county must comply with because the state of Alabama is a 4(b) jurisdiction, and to question the section’s constitutionality. The district court upheld the constitutionality of the sections and the U.S. Court of Appeals for the District of Columbia Circuit held in September 2011 that Congress did not exceed its powers by extending Section 5 and that Section 4(b) is still relevant to voting discrimination.
During the Feb. 27 oral arguments, Bert Rein, arguing for Shelby County, told the Court that now, in 2013, “the formula (of Section 4) isn’t rational.” But Justice Sonia Sotomayor said she believes there is still a place for preclearance requirements, especially in Alabama.
“Why would we vote in favor of a county whose record is the epitome of what caused the passage of this law to start with?” Sotomayor said. “It’s a real record as to what Alabama has done to earn its place on the list.” From 1965 to 2010, when Shelby County filed suit, there were 682 cases for preclearance from the county. The Justice Department has objected to five of those cases.
Section 5 of the act was originally supposed to last for five years, but has been renewed time and time again by Congress, most recently in 2006. Justice Anthony Kennedy said the continuous renewals may just be done out of habit.
“Congress didn’t take time to see if discrimination still exists in preclearance places. It just re-enacted it,” Kennedy said.
And if Section 5 is repealed, there is still Section 2, which gives citizens the ability to file suit after discriminatory voting practices are in place. But is that enough?
U.S. Solicitor General Donald Verrilli thinks that it is not. There may be “under the radar” changes to voting that the Justice Department will not be able to catch. He said Section 5 is more cost effective and efficient.
“To do something after the fact means you basically don’t have the right. Five years later (after filing suit) and your vote has not been counted. That election is over and done with,” said civil rights activist Judy Richardson, who worked as a watchline operator for SNCC.
Outdated or necessary?
Some believe South Carolina has progressed by leaps and bounds since the days of literacy tests at the polls and that the preclearance requirement is outdated and unnecessary.
Larry Kobrovsky, a Charleston attorney and former school board member who ran for the 1st Congressional District seat vacated by Tim Scott last year, would like to see Section 5 struck down.
“That was a historic and necessary milestone in the life of our country. But no one can rationally make an argument that South Carolina 2013 is the same one as existed in regards to voting rights in the mid-’60s,” he said.
Kobrovsky, who had prepared to file a lawsuit to exempt Charleston County from the preclearance requirement, says Section 5 stomps on state’s rights.
“People are not making decisions based on race when they vote in Charleston County. The same electorate that voted for (Barack) Obama voted for Tim Scott,” he said.
But Sellers, president of Voorhees College in Denmark, said the state’s rights argument was settled long ago with the Commerce Clause, which acknowledged the balance of power between the federal government and the states.
“Congress re-enacted it in 2006. Congress was wise in doing so. There wasn’t anything that happened between 2006 and now,” Sellers said.
Kobrovsky decided not to file the suit when the Supreme Court agreed to take up the issue and hopes its ruling will give elections back to the states. “I’m confident they’ll do away with the preclearance requirement,” he said.
Others believe the danger of removing Section 5 is still very much in existence in some Southern states. Michael McDonald, a redistricting expert and principal investigator for the Public Mapping Project, which provides transparency drawing legislative district lines, said the effects of striking down Section 5 will be felt among local and state voting districts.
McDonald, who was part of a litigation complaint against the state of South Carolina last year for a districting issue, said the lack of preclearance could lead to gerrymandering among local districts.
Section 5 continues to protect voting rights in areas around the country and without it, the problems already in existence will persist, he said.
“As long as we have these racially polarized patterns of voting, especially rural areas of the South, it’s unlikely that those patterns will disappear simply because of this ruling,” he said.
McDonald said there’s no telling what the Supreme Court will decide. He was surprised by their ruling Monday that struck down an Arizona law that requires people to submit proof of citizenship when they register to vote. “No one predicted that. And yet that’s what happened,” he said. “So the Supreme Court moves in mysterious ways. Sometimes you don’t know until these rulings come down.”
In this case, he said, he hopes the Supreme Court “will do the right thing.”
Ronald Gaddie, political science professor for the University of Oklahoma, co-authored the book “The Triumph of Voting Rights in the South” with Charles Bullock.
While Gaddie said there’s been amazing progress in some of the states that fall under the formula, including gains in minority voter participation, some argue the progress is only because of protections in the Voting Rights Act.
“In one hand, you have all this evidence of progress,” Gaddie said. “But then there’s the counter argument which is a nondisputable argument that says, ‘The only reason you had progress is because you had oversight. If you take away the law, it will get worse.’ That’s what was argued in 2005 before Congress.”
Many of the activists who fought for the act agree that although things are not as bad as they were, there is still a long way to go.
“There is no need to remove the protection. If there is no intention to violate it, there is no need to remove it,” said Mount Pleasant resident David Dennis, a Freedom Rider, former Mississippi director of the Congress of Racial Equality and co-organizer of the 1964 Mississippi Freedom Summer Project with Bob Moses. Moses worked with Martin Luther King, Jr. in the Southern Christian Leadership Conference and the NAACP’s Mississippi voter registration efforts in 1961.
If the case is not decided by the Supreme Court at the end of the term, it can roll over to the next, but that is rare.
Gaddie said ramifications of this decision will shape American history. “There’s powerful symbolism here. If you overturn the act, it’s the most significant reversal in civil rights in the U.S. since Plessy vs. Ferguson,” he said.
Dennis said the desire to remove Section 5 of the act gives him some reservations about the future of voting rights in America.
“We went through a lot and saw a lot of people lose their lives and livelihood to get the right to vote. To watch this come up as an issue again in 2013 is overwhelming. We don’t want to see anything that will take us back. We owe it to the people who sacrificed their lives for this country,” Dennis said.
And the fight continues.
“I want people to know that we’re continuing the work that hasn’t been finished,” Moses said. He believes what needs to be done is the creation of an affirmative right to vote as opposed to the language already used where the “right shall not be denied.”
But Richardson, who worked on the award-winning PBS series “Eyes on the Prize” and is a professor at Brown University, does not want people to vote just because past generations sacrificed for that right.
“If it didn’t make any difference, why would they kill and beat black folks who registered to vote?” Richardson said. “They need to understand this is a basic American right.”
In 1976, Ladner, who has her Ph.D. in sociology and was the first female president of Howard University, got an ecstatic call from her mother who was in her 40s and had just voted for the first time. Ladner was proud and she knew the work she had done with other activists to enact the Voting Rights Act made a difference. “She shouldn’t have had to wait that long.”
U.S. President Lyndon B. Johnson signs the Voting Rights Act of 1965 in a ceremony in the President’s Room near the Senate chambers in Washington, D.C., Aug. 6, 1965. Surrounding the president (from left, above his right hand) are Vice President Hubert Humphrey; Speaker John McCormack; Rep. Emanuel Celler, D-N.Y.; first daughter Luci Johnson; and Sen. Everett Dirkson, R-Ill.×
Black Americans register to vote as South Carolina Democrats in Charleston on July 17, 1948. Blacks in South Carolina registered throughout the state after a federal court order was issued forcing the South Carolina Democratic Party to enroll blacks and grant them full participation in party affairs. In 1944, the U.S. Supreme Court ruled that blacks cannot be denied the right to vote in primary elections. (AP Photo)×