Warning: Detours and Roadblocks Ahead — The Bumpy Road from Selma to Shelby County

By David Gespass

The introduction and passage of the Voting Rights Act (VRA) 1 in 1965 was hailed, at the time, as momentous. When President Johnson proposed it, he used the language of an anthem of the Civil Rights Movement, promising “we shall overcome.” 2 Long before that, in calling on Congress to insure African-American voting rights, Martin Luther King, Jr. promised: Give us the ballot, and we will no longer have to worry the federal government about our basic rights.

Give us the ballot, and we will no longer plead to the federal government for passage of an anti-lynching law; we will by the power of our vote write the law on the statute books of the South and bring an end to the dastardly acts of the hooded perpetrators of violence.

Give us the ballot, and we will transform the salient misdeeds of bloodthirsty mobs into the calculated good deeds of orderly citizens.

Give us the ballot, and we will fill our legislative halls with men of goodwill and send to the sacred halls of Congress men who will not sign a “Southern Manifesto” because of their devotion to the manifesto of justice.

Give us the ballot, and we will place judges on the benches of the South who will do justly and love mercy, and we will place at the head of the southern states governors who will, who have felt not only the tang of the human, but the glow of the Divine.

Give us the ballot, and we will quietly and nonviolently, without rancor or bitterness, implement the Supreme Court’s decision of May seventeenth, 1954. 3

To what extent we have overcome in the past half century and to what extent King’s assurances have been borne out is a matter of some debate. Five justices on the Supreme Court have apparently determined that all that needs to be done has been done. (That is not entirely fair and is a bit rhetorical, but much of the majority opinion in Shelby County v. Holder 4 is predicated on that contention.)

First, it is useful to put the right to vote in context, which I will discuss in the first section of this article. Once that right is secured, one must ask if it is sufficient to ensure democratic participation for all citizens generally (whether non-citizens should be entitled to participate in democratic institutions is a serious question, but one left to another day), and to what extent the VRA achieved that end. I will discuss this in section two. I then consider what is required for genuine democracy, a question not often addressed in discussions of the VRA and Shelby County . I will, in all modesty, offer my insights in section 3. Finally, in section 4, I argue that, in striving to make real King’s prediction, we focus far too much attention on presidential elections and too little on local ones.

I. The right to vote is a human right

The international community has long recognized that the right to vote is a human right. It was clearly enunciated in the Universal Declaration of Human Rights (UDHR) in 1948, which said, “Everyone has the right to take part in the government of his [sic] country, directly or through freely chosen representatives” and that “[t]he will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.” 5

The UDHR is simply a declaration and therefore does not have the force of law 6 but, by contrast, the International Covenant on Civil and Political Rights (ICCPR) 7 is a treaty and is legally binding on the countries that ratified it. In fact, as a treaty ratified by the United States, it is the “supreme Law of the Land.” 8 It is, however, “non-self-executing,” which means that it cannot be the basis for a claim in U.S. courts unless Congress enacts enabling legisla – tion. Needless to say, such legislation has not yet been forthcoming. Among other things, the ICCPR codifies the human right to vote, insuring that every citizen has the rights:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guar – anteeing the free expression of the will of the electors. 9

Before going further, a word about human rights is in order. They are not immutable. On the contrary, the concept of human rights has evolved over the centuries and continues to develop and expand. 10 The self-evident truths and unalienable rights the Declaration of Independence referred to were seen by many, including its principal author, in 1776 to be compatible with chattel slavery. Nor were they seen to extend to the land’s indigenous people. 11 Whatever debate we may have about human rights today, it is universally acknowledged that they extend to every human being. There is today an international consensus that recognizes human rights that are far more extensive than those recognized in such documents as the Declaration of Independence, the Constitution or France’s Declaration of the Rights of Man and of the Citizen. No doubt, a century from now those rights we recognize today will be considered inadequate, if not primitive.

In any event, human rights are recognized as universal, inalienable and indivisible. They are universal because, as noted, the only prerequisite to having the right to enjoy them is to be born a human being; inalienable, because they cannot be taken away (except, to some extent, as a result of a criminal conviction); indivisible, because no one can pick or choose which ones to honor and which to ignore. Moreover, indivisibility means that full enjoyment of any particular right is dependent on enjoyment of the others. The right to vote, to take the current subject, is pretty hollow to someone who is homeless and wondering where their next meal is coming from. 12 That right, or any other human right, cannot be guaranteed in isolation and its guarantee alone, Dr. King’s exhortation notwithstanding, does not insure real improvement in society. 13

All that being said, one cannot underestimate the importance of the right to vote. The Supreme Court, with seven justices concurring and another concurring in part, stated: “Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right.” 14 On the other hand, five justices argued thirty-six years later that, “The individual citizen has no federal constitutional right to vote for electors for President of the United States.” 15

Of course, it is true that there is no federal constitutional right to vote for electors. It is worth recalling that the Constitution speaks rarely and sparingly about voting rights. 16 Indeed, however much we talk about our democracy, the founders appear wary of giving too much franchise to “ordinary” citizens, even the white male landowners who, in 1789, were the only citizens entitled to vote. The Constitution that was adopted in 1789 provided for the direct election only of members of the House of Representatives. 17 The “election” of the president was even more divorced from the citizenry, with “(e)ach State (appointing), in such Manner as the Legislature thereof may direct, a Number of Electors. . . 18 There is no other mention of voting in the original Constitution. In 1803, the procedures were slightly amended, but no greater power was placed in the hands of the people. 19

Over the years, various amendments addressed the right to vote. In 1870, the Fifteenth Amendment was ratified to insure the right could not “be denied or abridged . . . because of race, color or previous condition of servitude.” In 1913, direct election of senators became the law of the land. 20 In 1920 women were finally given the franchise with the Nineteenth Amendment. After women’s suffrage was won, the Constitution said nothing more about voting until 1961 when a veritable flurry (in constitutional terms) of rights were established. The Twenty-First Amendment gave citizens of the District of Columbia the right to vote for presidential electors (they still do not have a voting representative in either house of Congress). The Twenty-Fourth (1964) made poll taxes illegal and the Twenty-Sixth (1971) lowered the voting age to eighteen.

The latter two amendments, incidentally, apply only to federal elections. That is the sum and substance of what the Constitution says about the right to vote. Nowhere, in the founding document of the government that is constantly portrayed as “of the people, by the people and for the people” 21 is the right to vote made sacrosanct. All that is required is that people of color, women and young people over eighteen, not be discriminated against in the exercise of what may better be described constitutionally as the privilege of voting. Presumably, if a state legislature decided that no one could vote, while that might foment a popular reaction, there would be no constitutional impediment.

A couple of other points about elections are in order. It is important to understand that elections are a process, not an event. 22 That is to say, however well organized and appropriately managed the actual polling may be, if the pre-voting process is flawed, so is the election. For example, if only one party has access to media, no one would argue that its electoral victory represents the voice of the people. This internationally-recognized sine qua non for a free and fair election illustrates why the Citizens United 23 is so pernicious. By disallowing restrictions on campaign spending, it voids limitations that are imposed throughout the world with U.S. government approval and gives the super-rich and their super-pacs extraordinarily disproportionate influence. 24 Similarly, if those who administer elections are overtly partisan, or seen as being so, there is precious little trust in the fairness of the outcome, regardless of whether the votes were counted properly or not.

Finally, a genuine election, as contemplated by the UDHR and ICCPR must be free, fair and transparent. A free election is one in which the voters are able, without intimidation or obstruction, to cast their votes as they choose. A fair election requires that the process permit every contestant to participate fully, to have a platform to express their views and to seek votes. Transparency is obviously necessary to insure both that elections are free and fair and are so perceived.

II. Is securing the right to vote sufficient to ensure universal democratic participation?

The VRA was first enacted in 1965. It was subsequently reauthorized, by overwhelming majorities in both houses of Congress, in 1970, 1975, 1982 and 2006. The most recent authorization passed the House by a vote of 390- 33 and the Senate by 98-0. It was signed into law by George W. Bush. In considering reauthorization, Congress compiled a legislative record of more than 15,000 pages. The VRA is generally recognized as extraordinarily successful. 25 Justice Roberts based his opinion gutting the Act on the remarkable success it had achieved. 26

One critical provision, §4(b), created what are called “covered jurisdictions.” These are jurisdictions, states or subdivisions, that were required, un – der §5 of the Act, before making any changes to their voting laws, to have those changes “precleared,” either by getting Justice Department approval or the approval of a three-judge federal court in the District of Columbia. Initially, they were “those States or political subdivisions that had maintained a test or device as a prerequisite to voting as of November 1, 1964, and had less than 50 percent voter registration or turnout in the 1964 Presidential election.” 27 Certain alterations in the coverage formula were made with the reauthorizations of 1970 and 1975. Nevertheless, the bulk of those jurisdictions were southern states with a long history of preventing African-Americans from voting, either by open terror or such devices as poll taxes and literacy tests.

Almost invariably, prior to the passage of the VRA, by the time a particular artifice to suppress the vote was deemed illegal, years had passed, elections had taken place, (white) people had taken office and the artifice under attack had been replaced, necessitating another fruitless cycle. By requiring those jurisdictions that had continued to flout the Fifteenth Amendment, 28 to preclear any and all changes they wanted to make in their voting laws or procedures, the VRA placed the burden on those jurisdictions to demonstrate the changes would not suppress voters’ rights. The process of securing preclearance from the Justice Department was relatively fast, easy and inexpensive, certainly as compared to litigating allegations of voter suppression. Unquestionably, the burden on covered jurisdictions to get preclearance was de minimis compared to the burden that the victims of discrimination and suppression had to bear to eliminate barriers that had been erected. The Act was intended to and, at least in the covered jurisdictions, did “shift the advantage of time and inertia from the perpetrators of the evil to its victim.” 29

Congress, however, included in the Act a fairly simple way for covered jurisdictions to be relieved of the burden of securing preclearance. The 1982 reauthorization amended §4(a) to allow any such jurisdiction, or subdivision, to terminate its coverage. It could “bail out” of coverage through a declaratory judgment in the United States District Court for the District of Columbia. To get the judgment, it had to demonstrate that, for the preceding ten years, it met the following conditions:

• No test or device was used within the jurisdiction for the purpose or with the effect of voting discrimination;

• All changes affecting voting were reviewed under Section 5 prior to their implementation; • No change affecting voting was the subject of an objection by the Attorney General or the denial of a Section 5 declaratory judgment from the District of Columbia district court;

• There were no adverse judgments in lawsuits alleging voting discrimination;

• There were no consent decrees or agreements that resulted in the abandonment of a discriminatory voting practice;

• There were no pending lawsuits that alleged voting discrimination;

• Federal examiners were not assigned; and

• There were no violations of the Constitution or federal, state or local laws with respect to voting discrimination unless the jurisdiction established that any such violations were trivial, were promptly corrected, and were not repeated. 30

Before Shelby County was decided, between 1976 and 2013, some 52 municipalities, counties and other political subdivisions of covered jurisdictions had taken advantage of the bailout provision. The overwhelming majority were by consent decree, which is to say the Justice Department agreed to the outcome. 31 In short, the bar to bailing out of coverage was not very high. All that was required was not violating the Act.

Shelby County, however, was not in a position to bail out. Calera, a city in Shelby County, was the defendant in a case brought by the Justice Department alleging multiple violations of §5 although, in fairness, no explicit racial disparity was alleged. 32 That being said, one of the facts that underlay the suit was that a change in Calera’s election law resulted in the city’s lone African-American city councilor, Ernest Montgomery, losing an election. 33 When the change was voided to redress the Section 5 violation, he was, not surprisingly, reelected. 34 Faced with that problem, Shelby County decided it was better to challenge the constitutionality of the VRA than to comply for ten years so it could bail out.

It should also be noted that §3 allowed for violators to be “bailed in” through court orders that required future compliance and supervision. Thus, the bailout provision was not static. Other jurisdictions could be added if courts found the need to do so and covered jurisdictions could be relieved of their obligations if they showed a history of compliance.

Much has been written about the Shelby County decision and it has been excoriated by writers far more capable than I, including Justice Ginsberg in her dissent, so I will be relatively brief in explaining Justice Roberts’s majority opinion. The decision found only §4(b) unconstitutional. That is, it determined that so much progress had been made since its earliest versions 35 that the formula for deciding which jurisdictions should be covered was outdated and could not be sustained. All Justice Roberts required, therefore, was for Congress to agree upon a new formula, one which would pass constitutional muster, as if that could possibly happen in the current toxic environment.

Roberts noted that, in covered jurisdictions, “turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” 36 He went on to note that the gaps between black and white voter registration levels in Alabama, Georgia, Louisiana, Mississippi, South Carolina and Virginia had shrunk substantially. 37 Clever politician that he is, Roberts came to praise the VRA while burying it. 38

Indeed, the accomplishments of the VRA, those noted by Roberts and many others, are indisputable. Gains made since 1965 are enormous; the ground has shifted and the landscape has altered. Yet, as the old saying goes, everything has changed and nothing has changed. Instead of poll taxes, we now have voter ID laws that overwhelmingly burden the poor, the elderly and disabled and most disproportionately impact people of color. Instead of literacy tests, many states have felon disenfranchisement so, not only are African-Americans incarcerated at an unprecedented rate, they are often deprived, even after release, of their fundamental human right to vote. 39

And what has the ballot won for the mass of African-Americans who, again disproportionately, remain mired in poverty, who have been unable to accumulate wealth? The vaunted “American dream” is more and more out of reach for the vast bulk of Americans of any ethnicity. It is, for the over – whelming majority of African-Americans so far out of reach it is no longer even a pipe dream.

As if voter ID and felon disenfranchisement were not enough, old, rich, white men can always turn to gerrymandering. Drawing of odd-shaped voting districts is only illegal if it is done along racial lines. There is nothing as yet to prevent politicians from drawing such lines for political advantage. If it is merely coincidental that elected African-American officials find themselves in a, for now, apparently permanent minority, who are they to complain? The unfortunate fact that their votes in legislatures may be consigned to irrelevance is a happenstance of history, not a violation of their rights. After all, they were elected.

What then does democracy look like?

Democracy can take many forms. Perhaps the purest form of democracy is reflected in small towns where the entire populace meets to make decisions. Obviously, that is less practical with larger populations where representative democracy prevails, in which people can elect people to make decisions. 40 And representative democracy itself takes different forms. There is the parliamentary system where members are elected by district and the parliament chooses its leaders from among those. There is a system in which there is also an elected president, chosen by a vote of the entire population. Within these forms are any number of variations. What is essential, under the UDHR and the ICCPR is that, in one way or another, everyone can participate in government “directly or through freely chosen representatives” and can “vote and to be elected at genuine periodic elections . . . by universal and equal suffrage and . . . by secret ballot.” 41

We are often told that Greece is the cradle of democracy because everyone there participated in its governing decisions. That may have come as news to the slaves in Athens, but all citizens did have a voice. Similarly, as is well known, voting in our American “democracy” was at first limited to white male property owners and, as noted, even they did not vote for that many positions. In fact, the Constitution, so worshiped by so many on both the left and right as the foundation that makes the United States the most important bastion of democracy in this troubled world, says little about voting, mentioning it five times, mostly in amendments, as has been discussed infra . 42

But let us look for a moment at the electoral college which still selects the president. Even though today there is presumably universal suffrage to vote for electors, 43 the practical effect of our system of selecting a president, where all a state’s electors are obligated to vote for a particular candidate, is that there are relatively few “battleground” states where one’s vote really matters.

As noted, the ICCPR, a treaty the United States has ratified which is therefore the supreme law of the land, 44 calls for “universal and equal suffrage.” This raises some interesting questions. The Constitution provides for the selection of the president through the electoral college process. It also provides, via the ICCPR, that elections should be by “universal and equal suffrage.” It is self-evident that the selection of a president may arguably be by universal suffrage, but it is certainly not equal. Leaving aside that less populous states have proportionately more electors than those with larger populations, 45 only theoretically is a vote in New York (overwhelmingly Democratic) or Alabama (overwhelmingly Republican) equal to a vote in a battleground state like Ohio or Pennsylvania, where the winner is really in play. The right to cast a meaningless vote is hollow indeed.

Moreover, it is evident that the electoral college results do not necessarily reflect the will of the populace. In 1992, Bill Clinton received 43.01 percent of the popular vote, compared with 37.45 percent for George Bush and 18.91 percent for Ross Perot. 46 Nevertheless, Clinton got 68.8 percent of the elec – toral college vote, winning by 370–168, even though it is safe to say that, among Perot voters, Bush would have been the overwhelming second choice. Similarly, in 2000, George W. Bush lost the plurality of the popular vote to Al Gore, 47.87 percent to 48.38, with Ralph Nader receiving 2.74 percent. Yet, he won in the electoral college by 50.47 percent to 49.53 percent (271–266). 47

But, perhaps even more anti-democratic than the Byzantine electoral college are the ways in which sectors of voters are disenfranchised. In other countries, election officials actually go to jails to insure the incarcerated may vote. 48 No such efforts are made in the United States, even for pretrial detainees, presumed innocent, who have not legally lost their right to vote. If they do not figure out how to get an absentee ballot and send it in, they are generally out of luck. There are eleven states in which convicted felons may never have their right to vote restored. In nineteen others, they must complete their terms of probation or serve their sentences and successfully complete parole. In four, they must complete their terms of incarceration and parole and in fourteen, they must complete their terms of incarceration. In only two states may convicted felons vote by absentee ballot while incarcerated. 49

Two points, other than the hodge-podge of state laws that make the right to vote dependent on residence, are significant in light of these statistics. I again emphasize that the right to vote is a human right, inalienable, universal and indivisible. Indeed, it is a fundamental right of citizenship. Depriving one of that right by virtue of a criminal conviction flies in the face of that fundamental precept. Certainly, doing so permanently does. There is really no principled grounds upon which such deprivation can be justified.

Secondly, the fact that such deprivation in the United States falls disproportionately on the poor, and expressly on poor people of color, makes the practice even more abhorrent. It is, indeed, a means to restore, by a new artifice, poll taxes, literacy tests and the other devices intended to prevent sectors of the population from exercising the franchise. 50 A fair argument can be made that felon disenfranchisement, even if justifiable on other grounds, violates the Fifteenth Amendment.

There are certain prerequisites to a truly democratic process. There must be broad participation. That necessitates efforts by the government to insure registration and participation. To illustrate the point, let me discuss Venezuela. I have accompanied two elections in Venezuela and visited as part of a solidarity delegation one other time. On that occasion, we had a lengthy meeting with Tibisay Lucena, president of the National Electoral Council (CNE). The differences in the way registration and participation are approached there and in the United States are stark. In Venezuela, as in almost every country, voters must have identification in order to vote. There, however, the CNE sends its people out to rural areas to insure that every eligible voter is registered and has proper ID. Registration booths are found in subway stations in Caracas. The government there facilitates registration. By contrast, in Alabama where I live, the principal form of ID is a driver’s license and the state attempted to close some 31 driver’s license offices for budgetary reasons. They are now open one day a week and there is a bill pending in the legislature to double that. Even if the offices are open, people who can least afford it often need to take a day off from work and travel many miles at significant cost in order to get identification. The cost of the ID itself, which some states will waive for those who cannot afford it, is far less than the cost of taking the time to travel to an office to get it. 51

Similarly, democracy requires ease of access to the polls. It does not help to have the right to vote and an ID card if you cannot get to a polling station. Nor does it help if you have to take off work to vote and cannot afford to do so or if you cannot get off work and have to choose between working and voting. Also necessary are rules that permit the broadest possible participation in elections. Any restriction must be viewed with skepticism and any doubt about its value must be resolved against it and in favor of the right to vote.

Most important, voters must believe that exercising the right to vote means something, that it will actually make a difference in their lives. When I accompanied the presidential election in Venzuela in 1999, long lines had formed at polling stations before polls opened. Despite all the criticisms of the process from the United States government, it was evident in any number of ways, the large turnout and the long lines being only one indication, that Venezuelans really believed that their votes mattered. The most recent parliamentary elections, which the opposition won decisively, demonstrated the vitality of Venezuelan elections, regardless of what one might think of the outcome.

III. Fulfilling Dr. King’s prediction

The 2016 presidential election has dominated the news, as do all presidential elections. Debates and analysis on corporate mass media (which generally emphasize how well the candidates are doing, as opposed to discussing their actual positions and programs ). And, again as usual, we are being told this is the most important election in (choose one) our lifetime, a century, ever! Bernie Sanders called for a “political revolution” to seize control of the country from the billionaire class and place it in the hands of the “middle class.” Parenthetically, with all the talk of the importance of the middle class and how the middle class used to thrive and now is suffering and shrinking, no one ever seems to define it and everyone seems to think themselves part of it.

But is it really enough to thoroughly vet the presidential candidates, to study their positions and decide who is the best choice? Will electing the best of all possible presidential candidates mean that everything would be for the best in this best of all possible countries? Can we really engineer a political revolution by starting with the chief executive?

When Dr. King said “give us the ballot,” he did not speak of presidents, but of governors and judges. The more local the elected official, the more directly will that official impact your life. School boards set the agenda for local education and how well or poorly they do their jobs impacts not just the students, but every member of the community. City councilors and mayors are the people we have to rely on to make sure overgrown lots are mowed, collapsing houses are repaired or torn down, garbage is picked up and the potholes in our streets repaired (this is where the rubber literally meets the road). You need not be a lawyer to be relatively confident that you are more likely to have business with a local judge than with the president.

In fact, “the real touchstone of the Sanders campaign is not the delegate count, Convention or General Election, but how much he and it inspires people to run as progressives for all those local elections. . .” 52 I would add, that is not limited to this year’s elections. I would say, regarding the success of Sanders’s presidential run what Zhou Enlai was reputed to have said when asked if the French Revolution was successful. “It’s too soon to tell.”

Moreover, local elections actually give candidates of modest means a chance to win and certainly give them the opportunity to talk to people about their immediate needs and how to meet them. Bernie Sanders’s political career began because he was a successful mayor of a small city in Vermont. If that success could be replicated across the country, one school board or city council or county commission at a time, those successes will actually consolidate progressive change and help it to spread. The Sanders campaign evoked a lot of passion, just as Obama’s did eight years ago. But there are dangers. Sanders’s loss of the nomination, despite having been almost inevitable, soured many of his supporters, particularly the youth, on political activism. If he had won there would have been even greater dangers. He would certainly not have been able to implement everything he advocated and would likely have been blocked far more often than he succeeded. His presidency, like Obama’s, would not have met the expectations of his constituents.

The answer to such failures, however, is not to drop out. It is to return to our homes and organize. A part of organizing in a democracy is to fight for and win local elections. A political revolution cannot, and will not, be built warning: detours and roadblocks ahead from the top down. If that was Sanders’s goal, it was doomed. If, on the other hand, his goal was to inspire more political activity, to get more people who share his views to engage in the political process on a day-to-day basis where they live, that is realistic. The Sanders campaign may still prove to be the beginning of a political revolution in this country. It could not have hoped to be the culmination of such a revolution, even if he became president.

In short, having the ballot doesn’t guarantee that lives will be improved and changes made. It can only do so when large numbers believe it will and exercise their franchise wisely at every opportunity. Those were the caveats Dr. King chose not to dwell on but, nearly sixty years after he called for the ballot, they are the caveats we now need to focus on.

IV. Postscript

There have been several voting rights cases decided in district courts since Shelby County and they tend to confirm the continued need for supervision of states seeking to disenfranchise their citizens. A slew of restrictive laws were passed and several have already been deemed illegal.

A Texas voting ID law, passed in 2011, before Shelby County, but not implemented until the day after Shelby County was decided was found to violate the Voting Rights Act by a district court in 2014. 53 The circuit court has recently reversed in part and remanded for additional fact finding, but did find that the law was enacted for a discriminatory purpose and thus violated the VRA. 54

In North Carolina, a law enacted after Shelby County was decided was found to violate the VRA by the Fourth Circuit, ruling the law targeted Af – rican-American voters with “almost surgical precision.” 55 Wisconsin, Kansas and North Dakota, which unlike Texas and North Carolina were not covered jurisdictions under the VRA, have also had voter ID laws declared unlawful. 56

Perhaps ironically, the latter three cases make one of Roberts’s points in Shelby County . He did not find the VRA unconstitutional in principle. Rather, he found the formula for determining which jurisdictions should be covered outdated. With the proliferation of voting restrictions around the country, it is almost as if Congress should determine which jurisdictions should be uncovered. Nevertheless, as discussed infra, the VRA provides for continuing court supervision of any jurisdiction found to be in violation, so there is no reason why Wisconsin, Kansas and North Dakota cannot be covered going forward.

But the greater problem and tragedy is that, for the foreseeable future, the advantage of time and inertia has now shifted back from the perpetrators of the evil to its victims, with all the time and cost that entails.


NOTES 1. 42 U.S.C. § 1973 et seq. As discussed infra , the original Act has been reauthorized and amended several times. 2. See Lyndon Baines Johnson’s Special Message to Congress, delivered to a joint session on March 15, 1965. http://www.lbjlib.utexas.edu/johnson/archives.hom/speeches. hom/650315.asp. 3. Martin Luther King, Address at the Prayer Pilgrimage for Freedom, Washington, D.C., April 17, 1957. The text can be found here: http://kingencyclopedia.stanford.edu/encyclopedia/doc – umentsentry/doc_give_us_the_ballot_address_at_the_prayer_pilgrimage_for_freedom/ Here is one of the sites where one can listen to the entire speech from King himself: https://vimeo.com/34759104 4. 570 U.S. , 133 S. Ct. 2612 (2013). 5. UDHR, Art. 21. The text can be found at http://www.un.org/en/universal-declaration- human-rights/ 6. The UDHR is, however, generally recognized as part of customary international law, so can be seen as having the force of law in the international arena. 7. Text can be found at http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx. 8. u.s. C oNst . , Art. VI. This is also a distinction between the ICCPR and the UDHR. 9. ICCPR, Art. 25. 10. The South African organization, Youth for Human Rights, has produced a short video that describes the evolution of the concept. Go to http://www.youthforhumanrights.org/ and click on “The Story of Human Rights.” 11. Among the other grievances against George III listed in the Declaration was that “He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabit – ants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. 12. Economic human rights, such as the rights to adequate food, clothing, shelter, health care and education are embraced in the International Covenant on Economic, Social and Cultural Rights, which the United States has yet to ratify. http://www.ohchr.org/EN/ ProfessionalInterest/Pages/CESCR.aspx. 13. Whether King really believed what he said about the ballot in 1957 or whether he was making a rhetorical point and whether, if he believed it in 1957 he still believed it a decade later, are all matters of speculation. 14. Wesberry v. Sanders , 376 U.S. 1, 17 (1964) 15. Bush v. Gore , 531 U.S. 98 (2000), citing McPherson v. Blacker, 146 U.S. 1 (1892), which held that the individual states’ authority to appoint electors is plenary. 16. There are those who argue that the right to vote is implicit in the Constitution because it is mentioned five times. See for example, Garrett Epps, Voting: Right or Privilege? a t – la Nti C (Sept. 18, 2012) available at http://www.theatlantic.com/national/archive/2012/09/ voting-right-or-privilege/262511/. 17. u.s. C oNst . , Art. I, Sec. 2 18. U.S. C oNst . , Art. II, Sec. 1. 19. U.S. C oNst . , Amend. 12. 20. U.S. C oNst . , Amend. 17.` 21. Abraham Lincoln, Gettysburg Address. It is widely available, including in school text books not approved by the Texas Board of Education. Here is one source: http://www. abrahamlincolnonline.org/lincoln/speeches/gettysburg.htm. 22. See fo r example , the United Nations Office of the Special Adviser on Gender’s “Women & Elections: Guide to Promoting the Participation of Women in Elections,” Chapter 7 on elec – tion observation, at http://www.un.org/womenwatch/osagi/wps/publication/Chapter7.htm. 23. Citzens United v. FEC, 558 U.S. 310 (2010) warning: detours and roadblocks ahead 122 national lawyers guild review 24. I have been chosen by the U.S. government to observe or otherwise participate in several elections in Central Europe and Asia and limitations on campaign spending and activity have always been imposed. 25. See for example , Samuel Issacharoff, Voting Rights at 50 (Jul. 23, 2015). a la BaMa l aw r ev . , Vol. 67:2, 387 (2016). “Without doubt, Section 5 of the Act, the provision that pre – vented re-imposition of disenfranchising devices inherited from Jim Crow, was the most successful civil rights statute in American history.” Id . at 388. 26. See notes 28 and 29, infra. 27. 133 S. Ct. at 2616. 28. “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” 29. South Carolina v. Katzenbach, 383 U.S. 301 (1966) 30. 42 U.S.C. § 1973b(a)(1) (2005). Prior versions of the VRA included a bailout provision. The greatest change here was that subdivisions of states were permitted to avail them – selves of the remedy. See Hebert, J. Gerald, An Assessment of the Bailout Provisions of The Voting Rights Act in v oti NG r iGhts a Ct r eauthorizatio N of 2006 (University of California, Berkeley Press). 31. http://www.justice.gov/crt/section-4-voting-rights-act. 32. United States v. City of Calera, Alabama, No. CV-08-BE-1982-S (N.D. Ala. Oct. 29, 2008). 33. Following passage of the VRA, it was far more difficult to exclude African-Americans from voting. A favored tactic to respond was to change voting in majority white local election jurisdictions from district to at-large, thus ensuring no African-American would be elected. 34. http://www.naacpldf.org/story/defending-voting-rights-act; Scottie Vickery, Calera Finally Has Six New Council Members , B ir MiNG ha M N ews , Nov. 10, 2009, available at http:// blog.al.com/spotnews/2009/11/calera_finally_has_six_new_cou.html 35. The first two reauthorizations of the Act made some minor adjustments to the formula for determining which jurisdictions would be covered and, as a consequence, added a few. 36. 133 S. Ct. at 2621 37. 133 S. Ct. at 2622 38. Goetting, Nathan and Gespass, David, NLGR 39. See M iChelle a lexa Nder , t he N ew J iM C row : M ass i NC ar Ceratio N iN the a Ge of C olor Bli NdNess (2010). 40. There are those who say the United States is a republic, not a democracy. To the contrary, a republic is simply a form of representative democracy as opposed to direct democracy. Others, more accurately, say it is an oligarchy, albeit with democratic forms. In State and Revolution , Lenin argued that “A democratic republic is the best possible political shell for capitalism (establishing power) so securely, so firmly, that no change of persons, institu – tions or parties in the bourgeois-democratic republic can shake it.” 41. Note 9, infra 42. U.S. C oNst ., a mend. XII. 43. The practical preclusion of sectors of the eligible voting populace will be discussed infra . 44. U.S. C oNst . , supra note 8. 45. Each state has electors based upon the total of its representatives, which is by population, and each state has two senators regardless of population. 46. http://uselectionatlas.org/RESULTS/national.php?year=1992 47. http://uselectionatlas.org/RESULTS/national.php?year=2000. This, of course, does not even address the Supreme Court decision in Bush v. Gore , 531 U.S. 98 (2000) that halted the recount in Florida on the grounds that it would deny equal protection to the voters whose votes were not being recounted, a decision so bizarre that the per curiam majority specifically precluded it from being precedent in any future case. 12348. The author’s wife has participated in at least twenty elections in countries in eastern Europe, the Balkans, Asia and Latin America as an observer or in other, more active, capacities, and has gone to jails to observe voting. 49. http://felonvoting.procon.org/view.resource.php?resourceID=000286. 50. See a lexa Nder , supra note 31. 51. Alabama Law Enforcement Agency press release of September 30, 2015, available at http://whnt.com/2015/09/30/alea-announces-driver-license-office-closures-includes-two- in-north-alabama/. See also Lyman, Bryan, Alabama Will Reopen Closed DMV Offices in Black Counties , G over NiNG (magazine), http://www.governing.com/topics/politics/ drivers-license-offices-will-reopen-on-limited-basis.html (October 20, 2014) 52. Roger Blacklow, on my Facebook page. 53. Veasey v. Perry, 71 F. Supp. 3d 627 (S.D. Tex. 2014) 54. Veasey v. Abbot (5 th Cir. July 20, 2016). The complete history of the case can be found at http://www.campaignlegalcenter.org/case/veasey-v-abbott-0 55. N.C. State Conference of the NAACP v. McCrory (4th Cir., 2016). Its history can be found at http://moritzlaw.osu.edu/electionlaw/litigation/NAACPv.McCrory.php. 56. One Wisconsin Institute, Inc. v. Nichol, 15-cv-324-jdp (W.D. Wisc. May 12, 2016); Fish v. Kobach, 16-2105-JAR-JPO (D. Kan., May 17, 2016); Brakebill v. Jaeger, 16-cv-008 (D. N.D. August 1, 2016)


David Gespass is an attorney in private practice in Birmingham, Alabama and a long-time member of our editorial board. He is a past president of the National Lawyers Guild and is chair of the board of CAIR Alabama. In 2015, he delivered the Birmingham Public Library’s annual Martin Luther King, Jr. lecture, focusing on voting rights, and was the author of the NLG’s amicus brief in Shelby County v. Holder.