In 1990 I was an attorney for the Voting Rights Section of Justice’s Civil Rights Division. Much to my mother’s dismay, I got sent to Mississippi to investigate the political and social environment in Noxubee County. The question was whether minority voters’ rights were in such jeopardy that federal observers were necessary. Among the folks I met was a tiny white woman with cotton-candy hair and matching glasses who couldn’t get my name right and asked me the same question.
Yew behavin’ yur-self?”
My role in this woman’s play was merely to smile and nod. After all, as a government outsider talking to Black voters about their concerns pre-election day, I clearly was not being good girl. Memories of that time, place, and irksome woman came to mind when I learned that federal observers wouldn’t be out in full force this presidential election. Thanks to the U.S. Supreme Court’s decision in Shelby County v. Holder, striking down a key part of the Voting Rights Act of 1965, which also hobbled the Department of Justice’s ability to enforce the law.
The Voting Rights Act of 1965 was one of the wonders of the civil rights world. This law required jurisdictions with a history of discriminating against minority voters to submit every voting change to the Department of Justice or a federal court to be “pre-cleared” or approved. Changing a polling place, type of machine, you name it. It allowed for an intervention before new practices interfered with the voting rights of people of color—so they didn’t have to file a time- and money-consuming lawsuit to address violations after they occurred. This law essentially forced certain states and localities to submit to federal will, turning our federal system on its head. But it made a difference to and for the electorate, as evidenced by the ever increasing numbers of minority voters and elected officials.
Until the Supreme Court decided Shelby County v. Holder.
Five justices voted in that case to strike down the formula for deciding which states should be covered under the Act. According to them, it violated the principle of “equal state sovereignty.” For jurists who claim to be faithful to the text of the Constitution and the framers, this ruling was a sharp departure.
The Voting Rights Act clearly represented Congress effort to enforce the 15th Amendment, a Reconstruction era provision designed to ensure that race would no longer be a barrier to voting. For our originalist justices, however, not one word about that history. Instead, pointing to the Act’s successes in increasing the numbers of African American elected officials, the majority engaged in post-racial magical thinking to suggest that it no longer was necessary.
In eviscerating the Act, the Court limited the Department of Justice’s ability to get at practices designed to deter people of color from voting – including the observer program. Observers are trained people who monitor polling places on Election Day. A DOJ attorney like I was supervises them; the team works together to ensure that polling officials don’t interfere with voters’ rights by failing to address problems such as serpentine lines, voter intimidation, among other things. The decrease in observers is just one tangible example of how the Supreme Court matters in daily life. How the justices matters. Which, of course means that elections matter. So, in the meantime, Attorney General Loretta Lynch says DOJ will not be deterred in its mission and will do what it can in concert with others to protect the vote.
What social justice action can we take? Well, to state the obvious: VOTE! But, if you have any problems, call the voter hotline: 1-888-750-8212.