In Shelby County v. Holder, decided this June, the United States Supreme Court struck down Section 4 of the 2006 Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act (“2006 VRA”). Section 4 of the VRA provides a coverage formula for nine states as well as counties in six additional states that must seek “preclearance” for any changes to their electoral practices under Section 5 of the VRA from either the federal Department of Justice or a three-judge Federal District Court in Washington DC.
The Supreme Court has replaced the Constitution’s principle of the individual’s right to vote with a right to equal representation for minority groups. This post investigates the central moments of this shift in doctrine and practice.
The Voting Rights Act of 1965 was arguably the most successful piece of federal legislation of the twentieth century. It was also one of the most principled, finally providing African Americans voting rights they were originally promised by the Fifteenth Amendment almost 100 years earlier.
Following passage of the VRA black voter registration rates in southern states, where voting discrimination was most pronounced, skyrocketed. Between 1965 and 1968 black registration rates went up almost tenfold in Mississippi, threefold in Alabama, and twofold in Louisiana and Georgia. South Carolina and Virginia also experienced large increases in black voter registration. The result was a transformation in southern politics. No longer were bald appeals to racism politically profitable. Black voters were now a force to be reckoned with in the South and soon so too were African American representatives. American politics would be changed forever as a result of these developments. They were all highly defensible as a matter of constitutional principle and political practice.
But in 1969 things changed. That year the United States Supreme Court, in Allen v. State Board of Elections, expanded the mission of the VRA from protecting the right to vote to protecting a right to representation for African Americans. As understandable as the outcome was in Allen—the Mississippi legislature appeared to be trying to dilute the votes of African Americans by submerging them in at-large elections—it revolutionized the purpose of the VRA. Allen gave birth to what scholars refer to as “second generation” voting rights; the right to an “undiluted” vote or to representation for legally recognized minority groups.