The Voting Rights Act: On Not Sleep-Walking through History

For me, and most of us, last week was a dizzying one. It found the Supreme Court of the United States doing away with the Defense of Marriage Act, upholding the right to same-sex marriage in California, gutting a key provision of the 1965 Voting Rights Act, and leaving affirmative action intact, even while cautioning the courts and universities that strict scrutiny would be applied to all cases on that subject – affirmative action would have to constantly justify its existence. That week also found Nelson Mandela, 94 years-old, on his deathbed. Finally, it was also the week that we had Albie Sachs as a visitor to our summer intensive series on Human Rights. His visit was a particularly auspicious one.

Albert Sachs’s career in human rights activism started when he was 17 years-old, continued through college and into his law practice in Cape Town. In defending people charged under the state’s racist statutes, he attracted the displeasure of the authorities and was initially subjected to “banning laws” restricting his activities, then arrested, and finally put into solitary confinement. Upon release from prison, he went into voluntary exile, but never discontinued his human rights work. In 1988 in Mozambique, Sachs was nearly killed when a bomb placed under his car by South African agents exploded, costing him an arm and the sight of one eye. Nevertheless, he emerged from the ordeal with renewed idealism for his cause and what he describes as simple joy at being alive, as is beautifully described in his 1990 autobiography, The Soft Vengeance of a Freedom Fighter.

In 1990, Sachs returned to South Africa, where he worked to draft the constitution for the newly democratic country. He was instrumental in making sure that discrimination on the basis of sex was illegal under the Constitution, as was discrimination based on sexual orientation or disability. He also worked to assure that there be environmental and socio-economic rights. In 1994, Sachs was appointed by Mandela to the Constitutional Court, where he served as judge until 2009, writing decisions that changed the face of human rights in South Africa, including a decision against the death penalty in 1995, a decision in favor of same-sex marriage in 2005, and several significant decisions about health care, access to clean water, housing and infrastructure. I had the immense privilege of meeting him three times during the week – when he visited my class on Human Rights and Global Literature, when he gave an astonishing and deeply moving public lecture that both reflected back on his sixty-year friendship and collaboration with Nelson Mandela and looked forward to the future of South Africa, and when he, Helen Stacy, Timothy Stanton and I did a three-hour, open-ended workshop on his final day on campus.

During that week, and after, I have tried to piece together both the lessons and message that Sachs left us with, and the events here in the United States. Albie (as he asked to be called) talked about a lot of things. I was particularly struck when he came to my class of students from around the world (Ghana, Egypt, Vietnam, China, Croatia, Mexico, as well from the United States) about the power of art and literature, and drew on examples from around the world. He spoke on the work of muralists like Diego Rivera, and how his life was transformed after hearing a lecture on the poetry of Lorca. In terms of the latter, he said, “When people ask me why I insert culture into the struggle, I tell them that culture brought me into the struggle.”

I thought particularly about how in Soft Vengeance Sachs describes the post-apartheid vote: “The elections were meant to be the most joyous period in my life, yet the only moment when I wept with real tears of unforced emotion was when I saw on TV the elderly and infirm being the first to vote. Elderly African men and women stood with a quiet, disciplined sense of achievement and told the interviewers exactly what I knew I would say: we waited our whole lives for this moment, and we, the crazies, the idealists, the holders of impossible dreams, turned out to be right, our lives were valid after all, our beliefs justified” (206-7).

I had that in mind as I considered the Supreme Court’s decision to remove Section 4 of the Voting Rights Act. The issue seemed to turn (once again) on whether or not we now live in a post-racial society. Have we moved further along the path of equality to the point where such “artificial” aids are not only not necessary, but unconstitutional? Justice Roberts’ assertion was that Section Four of the Voting Rights Act should be abolished because “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.” In his mind, “current conditions” are much improved because of the success of the VRA: “the Act has proved immensely successful at redressing racial discrimination and integrating the voting process.” So in a weird way success leads to termination.

In her dissent, Justice Ginsburg had this view of the majority decision: “In the Court’s view, the very success of §5 of the Voting Rights Act demands its dormancy.” In her bench statement Ginsburg argued that in renewing Section 5 in 2006, Congress “found that 40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the 15th Amendment.”

She noted that the provision has proven “enormously successful” in increasing minority registration and access to the ballot and “preventing a return to old ways.” Even in jurisdictions where discrimination may not be overt, “subtle methods” have emerged to diminish minority turnout, such as racial gerrymandering. As for Section 4, Ginsburg wrote that “the record for the 2006 reauthorization makes abundantly clear [that] second-generation barriers to minority voting rights have emerged in the covered jurisdictions as attempted substitutes for the first-generation barriers that originally triggered preclearance in those jurisdictions.”

While Roberts stated in his ruling that, “things have changed dramatically,” implying that Section 4 is now unnecessary, in fact, since 2000, the VRA has been invoked 74 times in order to protect voter equality. According to Ginsberg, throwing out Section 4 is like “throwing away your umbrella in a rainstorm because you are not getting wet.” The storm was not long in coming.

It took Texas only two hours after Section 4 was overturned to announce plans to implement the most stringent voter ID in the country, as well as a controversial redistricting measure – and five other states moved toward similar legislation forward as well. “The Court today declared racism dead in this country despite mountains of evidence to the contrary,” said J. Gerald Hebert of the Campaign Legal Center. Benjamin Todd Jealous, President and CEO of the NAACP publicly reminded us that “this case comes on the heels of an election year in which our nation witnessed the greatest assault on voting rights since the Jim Crow era.” The immediate and precipitous actions taken by these states showed exactly how anxious they were to capitalize on this change in law, and the persistence of both racism and the desire to preserve political power so as to guarantee the status quo was patently evident.

Now the question as to whether or not our history of racism is “with us” or not was also raised by Tomiko Brown-Nagin and Lani Guinier in their amicusbrief in the Fisher case. They emphatically argued that the court needed to pay attention to the fact that the history of Texas had particular texture:

Fisher v. Texas is unlike any affirmative action case this Court has ever confronted. For the very first time in history, the U.S. Supreme Court is asked to rule on the constitutionality of an admissions program designed to increase racial diversity at a university located in a southern state – Texas.

The history of Texas and of the University of Texas (“UT”) distinguishes the present case from DeFunis v. Odegaard, 416 U.S. 312 (1974), Regents of the University of California v. Bakke, 438 U.S. 265 (1978), and Grutter v. Bollinger, 539 U.S. 306 (2003). The aforementioned cases all involved universities located in the North or West that lacked a history of state-mandated segregation. Fisher arises out of a profoundly different context.

UT’s quest for a racially diverse student body is justified, in part, because it represents an attempt by UT to come to terms with its own history of purposeful discrimination and the history of purposeful discrimination by the state of Texas.

The Supreme Court’s decision, which threw the case back to the lower courts, bypassed that question entirely.

One way to address the question of whether or not we need to account for the legacy of racism, and, for the purposes of the present essay, the specific issue of voting rights, is to argue for the proposal put forward by Geson, Sopoci-Belknap, and others – we need a Constitutional Right to Vote. This would bypass entirely the argument as to whether or not we still need remedies now or in the future and enshrine the right to vote as a permanent right under the Constitution, and thereby protect it against the vagaries of judicial and legislative bodies. I would be solidly for that. And yet the issue also requires a broader and ongoing kind of attention on our part.

The question of whether nor not the legacy of racism lives on not just emotionally (think Paula Deen), but also institutionally and in terms of political, legal, and educational practices, is an essential and open question. I turn back to Albie Sachs. Speaking about voting in the first elections after the end of apartheid, Sachs writes of the answer he would give upon being asked the question, “Was it worth it, after all you had been through, to end up tired and strained in an anonymous voting queue and be one of twenty million people making a cross on a piece of paper?” “I would have answered yes, yes, yes. The reward was the journey itself, the ineffably rich human encounters on the way, the manner in which we evolved, so interesting, so full of surprise, so challenging emotionally and intellectually, as we led three, four, five, six lives in one. We dared everything, had views on art, science, the origin of the universe, the nature of history, the destiny of humanity. Everything tied up… We were not somnambulists, meandering vacuously through life, but human beings incandescent with purpose.” (pp.221-222)

One unfortunately prevalent and growing mode of sleep-walking is to simply let expire the question of racism, taking for granted that we live in a post-racial society. One way to wake up is to ask pointed and specific questions: Are legal protections still necessary, or are they outmoded obstacles? Surely we need to attend to the specific properties of each remedy. And if the remedy is still needed, we should ask, is it the best one? But we cannot let this simply be a legal problem for only experts to hash out. We need to address the question in our own hearts and behaviors as well. As Sachs says, it all ties together. We need not to be somnambulists. We need to be attentive to both the pastness of history and its presence in the very way we look at life itself, multi-dimensionally, locally, as well as globally. And then act accordingly.