I have called the Voting Rights Act of 1965 (VRA) a “sacred symbol” of American democracy. For that reason, the Supreme Court’s momentous decision holding unconstitutional a part of the Act – Section 4, for short — that had continued to apply, nearly fifty years later, uniquely to the South, is itself laden with deep symbolic meaning. But what is that meaning? In truth, the decision will express such radically different meanings to different people that we will not be able to forge common ground regarding even the threshold question of what the decision is “about.” Starting from such irreconcilable symbolic places, any discussion of the actual opinions themselves will be almost beside the point.
To those who will be distraught, outraged, or fearful, the essential question at stake in the Court’s decision – and in the continuing vitality of Section 4 — is whether we believe racial discrimination in voting still exists in the South. The question being framed this way, the Court’s decision today will appear to be, at best, a denial of reality and a reflection of a naïve “post-racial” view that in the Obama era, racial discrimination in voting has ended. Justice Sotomayor, at oral argument, perfectly reflected this perspective on what the decision represents when she posed this pointed question to the VRA’s challengers: “Do you think that racial discrimination in voting has ended, that there is none anywhere?” The answer to that question must be no. From this vantage point, then, as long as racial discrimination in voting still does take place at all in the South, Section 4 of the VRA – the part the Court invalidated – remains not just justifiable, but essential.
In addition, to many people, the VRA symbolizes protection of the crown jewel of rights, the right of access to the ballot box. For those who know the history, this right was born from the blood and the bodies of all those who had been given the last full measure of their devotion to secure full access for all to the ballot box – those beaten on the bridge from Selma, Alabama in 1965, the three civil rights workers lynched in the Mississippi summer of 1964, and many others. How can the Court find unconstitutional an Act that plays any role at all in ensuring political equality regarding this most sacred right? And why should the Court second-guess Congress on these issues?