In 2013, when the Supreme Court effectively struck down a crucial section of the Voting Rights Act, the disagreement between the five conservative Justices in the majority and the four moderate liberals in dissent was about history as much as law. For the conservatives, Chief Justice John Roberts, Jr., wrote, “Our country has changed” since the statute became law fifty years ago. Devices that once blocked minorities’ access to the ballot, like the voter fees known as poll taxes, had been outlawed for more than forty years. The percentages of whites and minorities who register to vote and then go to the polls are approaching parity in the South and other parts of the country where, half a century ago, they were far apart. It is no longer necessary, Roberts went on, for the federal government to pre-approve any proposed changes to election laws in states with records of entrenched discrimination, as the statute had required since 1965.
For the moderate liberals, Justice Ruth Bader Ginsburg responded that pre-approval, or pre-clearance, was still necessary to “facilitate completion of the impressive gains thus far made” against discrimination that kept blacks, Hispanics, and other minorities defined by race or color from voting and to “guard against back sliding.” The tactics that are used today to limit the voting power of minorities, like racial gerrymandering and the adoption of at-large voting districts, are more subtle than the devices that blocked access to voting half a century ago, Ginsburg wrote. But these second-generation barriers cut “down the right to vote as certainly as denial of access to the ballot.”
The Roberts view reflects what the Harvard historian Alexander Keyssar, in “The Right to Vote: The Contested History of Democracy in the United States,” called the “triumphalist presumption: a deeply embedded, yet virtually unspoken, notion that the history of suffrage is the history of gradual, inevitable reform and progress.” The Ginsburg view takes into account what Keyssar described as cycles of gain and loss in the right to vote—“a history of both expansion and contraction, of inclusion and exclusion, of shifts in direction and momentum at different places and at different times.”