Publication Date

January 5, 2015



Perhaps the most surprising sentiment to emerge from AHA Session 146, “The Past, Present, and Future of the Voting Rights Act,” was praise of the United States Congress. Not the Congress of 1965—which introduced and then passed the act in spring and summer of that year—but the Congress of 1981, and then of 2006, when the act was renewed and extended, and when presidents Ronald Reagan and George W. Bush, respectively, occupied the White House. An attendee had asked the panel, specifically, how Jim Sensenbrenner, a conservative Republican representing Wisconsin’s 5th congressional district, could have voted in favor of the act’s extension both years. “He was convinced by testimony,” panelist J. Morgan Kousser explained yesterday, in reference to the extensive hearings and legislative record documenting contemporary racial discrimination in covered states; “that’s an example of congress working.” In 2006, the Senate passed the act’s extension by a 98-0 vote.

It came as a blow to congressional authority and procedure, then, when the US Supreme Court shattered key provisions of the Voting Rights Act soon after, in the summer of 2013. In its 5-to-4 ruling on Shelby County v. Holder, the Court invalidated the “coverage formula” used by the act to determine which states and local governments needed approval in order to change their voting laws.“The conditions that originally justified these measures,” Justice Roberts wrote on behalf of the majority, “no longer characterize voting in the covered jurisdictions.”

Kousser wasted no time yesterday going after the chief justice, making clear from the outset that his presentation would not object in theory to Justice Robert’s argument but would instead “destroy the empirical basis of it.” Attendees were walked through Kousser’s database of over 4,100 contemporary cases of documented voter discrimination in the covered states. In answer to how Justice Roberts could rule as he had in the face of such evidence, Kousser said dryly, “The Supreme Court is different from us. It gets to create its own reality, and then it gets to respond to that.”

Sitting to his left but seeming of a more moderate inclination was Nina Perales of the Mexican American Legal Defense and Educational Fund. Perales spends her working life in San Antonio, helping citizens who want to vote fight the many obstacles along their way. Perales reached back to the years after the Voting Rights Act was first implemented, when “preclearance” came to Arizona in 1965 and to Texas a decade later, requiring those states to win approval from the federal government in order to change their election laws. She celebrated the banning of literacy tests and poll taxes in 1965 and 1966. Asked how she and her colleagues would respond to the freedom Texas now has to alter its voting laws (erecting new hurdles on her clients’ paths to full participation), Perales chuckled: “We will continue slogging along.”

A sense of the long and glorious history of “slogging along” came through historian Julian Hayter’s talk as well; the Voting Rights Act, he began, “didn’t emerge out of a clear blue sky.” Much like Perales, Hayter’s emphasis lay more on the steady and determined struggles for justice during the civil rights movement than on moments of epiphany or theatre. “Litigation is time consuming,” Hayter explained, “and progress is slow.” Even in the wake of the act’s triumphant passage in 1965, its supporters were left with “a hard political truth: it is often easier to perpetrate injustices than undo them.”

The panel’s august chair (and former AHA president) Thomas Holt concluded the session by asking the speakers their “prognosis for the future” with the caveat that they say something positive: “Let’s not send these good people out on a downer,” Holt pleaded. Social scientist Janelle Wong tried her best (in the face of her extensive research on growing racial divisions in much of the American South). “The gutting of Provision Five,” she said, “really puts the burden on the voters.” Nina Perales concurred; she will slog on, believing that “in the much bigger picture, we have an enormous job of increasing voter turnout for everyone.” Kousser did what few of Professor Holt’s students have dared over the years and defied Holt’s request; the most positive sentiment Kousser could come up with was this: “let’s end by all praying for Justice Ginsburg.”

, Contributing Editor

This post first appeared on AHA Today.

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