Award-winning Investigative Journalist Robert Parry (1949-2018)

Award-winning investigative journalist and founder/editor of, Robert Parry has passed away. His ground-breaking work uncovering Reagan-era dirty wars in Central America and many other illegal and immoral policies conducted by successive administrations and U.S. intelligence agencies, stands as an inspiration to all in journalists working in the public interest.

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Supreme Court Challenge to 1965 Voting Rights Act Ignores Present Day Pattern of Voter Discrimination

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Posted March 6, 2013

Interview with David Gans, director of Human Rights, Civil Rights & Citizenship program at the Constitutional Accountability Center, conducted by Scott Harris


One of the major accomplishments of America’s civil rights movement is under attack. The 1965 Voting Rights Act, enacted to prevent local and state governments from disenfranchising minority voters, is being challenged before the U.S. Supreme Court by Shelby County, Ala., whose officials assert that the law is an anachronism, no longer needed in the “post racial, New South” and is an unconstitutional infringement on “state sovereignty.”

The plaintiffs in this case, supported by the conservative Project on Fair Representation, are specifically challenging the constitutionality of Section 5 of the Voting Rights Act, which requires federal preclearance of new voting laws proposed by jurisdictions with a history of discrimination.

Section 5 currently applies to nine states, and parts of seven additional states with a record of discrimination at the polls. While many jurisdictions have applied for and have been granted exemptions from the preclearance requirement after 10 years of good behavior, Shelby County, with its poor record on voting discrimination, is not eligible. Although The Supreme Court has upheld the Voting Rights Act on four previous challenges and the law was overwhelmingly renewed by Congress in 1970, 1975, 1982, and 2006, some observers are concerned that the Supreme Court’s conservative majority may be poised to overturn the landmark civil rights legislation. Between The Lines' Scott Harris spoke with David H. Gans, director of the Human Rights, Civil Rights and Citizenship program at the Constitutional Accountability Center. Here, he assesses the continued relevance of the voting Rights Act and the consequences if the law is overturned.

DAVID H. GANS: Congress is the body that, under the Constitution, has the authority to prevent and deter racial discrimination. In 2006, they looked at the state of voting discrimination across the country and they still found racial discrimination in voting was concentrated in places like Alabama. So, for example, in Selma, in the '90s, as African Americans became a demographic majority, there were efforts to dilute their voting strength. And I think what you see when you look at examples, Congress found was as African Americans and Latinos were growing in number and ready to exercise political power, there were efforts to deny their voting rights.

One really stark example was in Mississippi in a town of Kilmichael, there was even an attempt to cancel an election when it appeared that African Americans were going to succeed at the polls and preclearance was the remedy that blocked these efforts.

So, there's certainly been progress, and no one doubts that there's been progress toward goals of the 15th Amendment, but Congress found that the job wasn't done and that preclearance was still necessary to prevent and deter racial discrimination in states that have a history of voting discrimination. It's particularly inappropriate for Shelby County to be bringing this challenge because they in fact have a very recent history of voting discrimination. And in 2008, the city of Clara, which is within Shelby Country, tried to eliminate the only district that provided an opportunity for African Americans to elect candidates of their choice. And so, they don't come into court with clean hands, they come with the very recent record of voting discrimination and it's significant that the first questions that Justice (Sonia) Sotomayor and Justice (Elena) Kagan asked was, "Why are you in court when your record is exactly why we have this critical provision?"

BETWEEN THE LINES: One of the things that's often quoted about the oral arguments made before the Supreme Court justices was Justice Antonin Scalia and his comment related to what he termed as "racial entitlements." Did that surprise you? Or, maybe you can place those comments in context for us and their importance, if any.

DAVID H. GANS: It was surprising, even shocking. One, protection against voting discrimination is a core right that belongs to all Americans. It's an American entitlement, not a racial entitlement. So calling protection for the right to vote something that should be eliminated is just contrary to the Constitution. Scalia who has this reputation as the great conservative who follows the text, here is ignoring that it's Congress that has the power to prevent inter-racial discrimination in voting.

BETWEEN THE LINES: David Gans, how do you think this challenge to the Voting Rights Act relates to the fact that in this 2012 presidential election we saw dozens of states controlled by Republican Party try to put up obstacles to voting for minorities, students, the elderly with things such as onerous voter ID requirements, curtailing early voting, making registration of new voters difficult. This seems to be part of a pattern of things happening in the country that maybe speaks to a concern of the Republican Party of the changes in the demographics of voters, where, maybe they fear that without manipulating who's going to go to the polls, they will have a harder time getting elected.

DAVID H. GANS: So, the first point that you mentioned is that the 2012 election really shows why the (Voting Right) Act protections against racial discrimination in voting are so critical. And what you saw in the run-up to the election was that courts with judges across the ideological spectrum blocked these new voter suppression measures.

So in Texas, the Voter ID law that was the most stringent in the nation was blocked by a three-judge court applying the preclearance provisions of Voting Rights Act.

In Florida, the cutbacks on early voting were also blocked by the preclearance requirement of the Voting Rights Act. So we saw why this protection is so critical and because preclearance had to be satisfied, the right to vote for racial minorities was in play and enforced for the election, and these restrictions didn't go into effect. So I think that one, it shows the critical nature of preclearance and I think one of the things we've seen, is that if you look at the history of the Voting Rights Act, there's been a history of the Act and renewal of preclearance being passed by widespread majorities. And in some ways, in 2006, Republicans and Democrats agreed that the right to vote is under the core of what the Constitution is all about. And that this most important and successful piece of legislation needs to be continued to finish the work of realizing the promise of the 15th Amendment.

And I think what you're seeing now is a shift. There is a lot of Republican opposition, a lot of conservative opposition to the Voting Rights Act, and that's reflected in sort of what you see in the court in which you see the ideological divisions over the Constitution that play out in so many important cases. There's a real question of "If this is struck down, will Congress be able to respond?"

BETWEEN THE LINES: And that's pretty much the only place to go if the court does strike down the Voting Rights Act, isn't it?

DAVID H. GANS: I mean, in terms of providing national protection for the right to vote, Congress is the one that can do that. Everyone agrees, and the premise of Shelby kind of challenges - there'll still be critical parts of the Voting Rights that will still be in place, namely Section 2, which has a nationwide prohibition. But these special remedies that have long provided critical protection in jurisdictions with a history of voting discrimination would not be in place - under a ruling by Shelby arguments - would not be constitutional.

For more analysis and commentary on the Voting Rights Act, visit the Constitutional Accountability Center at

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