June/July/Aug 2013

A Sold-Out Franchise

Reexamining the frozen promise of the Voting Rights Act

Dahlia Lithwick


When the US Supreme Court heard oral arguments over the constitutionality of Section 5 of the Voting Rights Act this past February, pundits and reporters used an all-but-obligatory set of phrases to describe the legislation. They characterized the Voting Rights Act of 1965 as a “landmark” and the “crown jewel” of the civil rights era, and noted that it still represents the “high-water mark” for both civil rights and voting rights. Yet in some sense, all the lofty rhetoric has come to obscure the real story of one of the Johnson administration’s signal achievements. The Voting Rights Act is now casually lumped together with the Civil Rights Act of 1964; Selma, Alabama, has been blurred in popular memory with Montgomery. Poll taxes and literacy tests are seen as identical to segregated lunch counters, all of which have become relics of a rapidly vanishing past. With Bending Toward Justice, Gary May, a historian at the University of Delaware, attempts to recover the real saga of the act’s passage from the reverent tropes of popular memory, detailing the ways in which the right to vote is fundamentally different from other civil rights, and illuminating all the reasons it remains as fraught today as it was in 1965.

At issue in Shelby County v. Holder, which is now pending before the Supreme Court, is whether nine mostly southern states will be allowed to modify their own voting rules without first clearing the proposed changes with federal officials. At issue in the Shelby County case is a dispute over whether the affected states have outgrown the need for this invasive federal oversight—or, as the critical swing voter Anthony Kennedy put it in February, whether today’s Alabama is an “independent sovereign” or must exist “under the trusteeship of the United States government.”

In a sense, then, the constitutional argument now playing out in the courts is a version of the larger political argument embodied by the whole Obama era: Is today’s America truly “postracial”? Has anything really changed since the poll taxes and police beatings of the 1960s? Or has the landscape of race and civil rights merely shape-shifted into voter-ID laws and race-conscious redistricting?

For May, even in the age of Obama, the latter question commands an unambiguous “yes.” Race is as polarizing today as it was in the 1960s. “History reveals,” he concludes, “that improved conditions come less from a revolution in white attitudes toward African Americans than from the Act’s effectiveness in altering electoral conditions that had prevented blacks from winning elections.” Moreover, the act continues to humiliate and infuriate the covered southern states, which have come to feel like they are themselves “sitting in the back of the bus,” as the late US representative Henry Hyde put it in 1982. The landmark law of blessed memory, in other words, has mainly opened pathways to black electoral success and hardened unspoken racial tensions. America is not so much postracial as subracial, and the Voting Rights Act has both solved and perpetuated that state of affairs.

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President Lyndon Johnson signs the Voting Rights Act, Washington, DC, 1965.

Bending Toward Justice offers up a bracing reminder of what has changed since the civil rights era, and what hasn’t. One of the most striking hallmarks of the Jim Crow order was the extent to which brutal physical violence was deployed against African Americans simply for seeking to register to vote—and the degree to which such casual brutality was tolerated by public opinion. In cultural terms, the polity has altered chiefly thanks to a greater awareness of offensive racial speech: The slurs and epithets that made Alabama’s George Wallace a national hero to so many would end a political career today.

In other ways, however, the signal shifts in the decades since 1965 have been tactical ones, May notes. The battle over race and the right to vote has moved from a war on voter registration to a war on voting itself—with efforts to suppress minority votes taking place today in state legislative initiatives to enact restrictive voter-ID laws, to eliminate early and Sunday voting, and to introduce other mechanisms aimed at reducing a phantom epidemic of “vote fraud.” Indeed, the present state of play in debates over voting rights suggests that, if anything, America has mainly evolved in adopting polar-opposite, but still extreme, positions. The white majority has gone from post-Reconstruction arguments that minorities should be denied the vote because they are somehow inferior to arguments that they need to be denied the vote because they are now too powerful. Or, as one fan of banning early voting claimed, “I really actually feel that we shouldn’t contort the voting process to accommodate the urban—read African American—voter turn-out machine.”

In fact, one of the enduring legacies of the marches, the lawsuits, and the drama of the ’60s-era agitation for voting rights that May so lushly describes is the sense on the part of some white Americans that they were the victims of a massive legislative scam. Under this new dispensation, the defenders of white supremacy have maintained that a well-organized civil rights movement somehow co-opted the pristine machinery of voting in a way that became, as Justice Antonin Scalia described it in this year’s voting rights case, “a perpetuation of racial entitlement.”

Bending Toward Justice goes a long way toward dispelling the myth that the massive popular push behind the Voting Rights Act was well organized, let alone a far-seeing conspiracy. May details the persistent and ultimately nearly fatal internecine wars between the Southern Christian Leadership Conference, the Student Nonviolent Coordinating Committee, the Black Panthers, and various other civil rights groups. He is strongly moved by—but not uncritical of—the efforts of Dr. Martin Luther King Jr., whose star power often drove the voting rights battle, but sometimes did so at the expense of the foot soldiers on the ground in Selma. May walks us through the tortuous legislative history of the bill as it went from drafting to passage. He thoughtfully explores the depression and self-doubt that plagued Lyndon B. Johnson in his on-again, off-again efforts to pass the seminal law, and how he finally found his voice in 1965 when he told the American people, “We—shall—overcome.” May also leaves us with the delicious and indelible image of an enraged Johnson dressing down Governor George Wallace in a three-hour meeting at the White House in 1964: “Now, in 1984, George, what do you want left behind? You want a great big marble monument that says, ‘George Wallace: He Built,’ or do you want a little piece of scrawny pine laying there along that hot Caliches soil that says, ‘George Wallace: He Hated’?”

But the most riveting and painful sections of May’s study are the ones detailing the daily battles and humiliations of the civil rights workers. The ’60s-era activists for black voting rights were beaten and jailed for their organizing efforts in Alabama; Jimmie Lee Jackson was murdered by police officers on the day he registered to vote in Marion, Alabama; and protesters were attacked on March 7, 1965, in the tragedy that became known as “Bloody Sunday.” The shift in public opinion happened only after the brutality of that day, beamed across America that night. (ABC had cut into its prime-time broadcast of Judgment at Nuremberg with images of Selma, inextricably linking the brutality of Alabama officials with the atrocities of the Holocaust for millions of viewers.) These are the images and narratives that finally changed American public opinion in ways that opened the door for the passage of the Voting Rights Act. Paradoxically, they are also the stories and images whose very absence today suggests to some that America’s race problems are a thing of the past.

Contrary to this comforting view, May insists that the passage of the Voting Rights Act created as many political problems as it solved—not least among them a southern white backlash that persists today. This backlash is steadily fed by a sense of shame and grievance in the affected states that would like to see the federal government and the courts “treat the South like the rest of the nation,” as Senator Strom Thurmond phrased it in 1968. This same sensibility was echoed in Chief Justice John Roberts’s question, at oral arguments in February in the Alabama challenge, about whether “the citizens in the South are more racist than citizens in the North.” As May suggests, Governor Wallace himself learned in the wake of the battle over the Voting Rights Act that one can use the words “states’ rights” instead of “segregation” to the same political effect. May ends with a review of the raft of voter-ID bills that were pushed through dozens of state legislatures just last year. All of these measures would have had the practical effect of disenfranchising minority voters, and most of them were invalidated by courts invoking the Voting Rights Act. It will be ironic indeed if the Supreme Court determines that a piece of legislation employed so recently to shore up the constitutional protections of minority voters is nothing but a clanking relic.

But for May, perhaps the most enduring—and again, paradoxical—legacy of the Voting Rights Act is that if Republicans were afraid to challenge it, Democrats were about equally afraid to strengthen it. In 2006, when Democratic lawmakers had the opportunity to revisit some of the law’s more controversial provisions, they declined to do so. In fact, in a 2009 ruling, the Supreme Court told Congress to update its formula for deciding which parts of the country should remain covered under the law’s provisions—in language that largely presaged the challenge now pending at the court; Congress again failed to do so. We have all apparently become so accustomed to thinking of the VRA as a “crown jewel” that we have allowed it to become a museum piece as well.

In 2005, then president George W. Bush told the Congressional Black Caucus, “I don’t know anything about . . . the . . . Act. When the legislation comes before me, I’ll take a look at it, but I don’t know about it to comment more than that.” The assembled representatives were horrified. But they shouldn’t have been surprised. We have all probably talked about the Voting Rights Act in hushed whispers for too long. May’s efforts go a long way toward ending that silence.

Dahlia Lithwick is the Supreme Court correspondent for Slate.

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