'I Have a Right to Vote' & Exploring Current Issues of Voting Rights in the United States

One of the most famous quotes by Supreme Court Justice Ruth Bader Ginsburg, who died on September 18, 2020, is this statement: "Throwing out preclearance when it has worked to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet." (NOTE: An excerpt of this quote is delivered by tennis legend Billie Jean King in the 'I Have A Right To Vote' video.)

What is "preclearance"? What "discriminatory changes" did it work to stop? And why did Justice Ginsburg say anyone was "throwing it out"? To answer these questions, we have to first go back in U. S. history -- to the 1950s and 60s and even the 1870s.

One of the main goals of the Civil Rights Movement of the 1950s and 1960s (though the work had started long before then) was making sure that the voting rights of African Americans were respected and protected. The 15th Amendment to the Constitution granted these rights to formerly enslaved people in 1870. But the rights were systematically denied to Black people after Reconstruction ended in 1877.

Following decades of protest and legal challenges by Black people, and violent opposition from white supremacist authorities in (mostly) Southern states, the U.S. Congress passed the Voting Rights Act of 1965 (VRA). President Lyndon B. Johnson signed the bill into law. It was an extremely effective tool in stopping state and local officials from discriminating against African American voters, as well as voters from other ethnic or racial groups.

One of the most important parts of the VRA was that it required "preclearance." This rule said that any state or locality (such as a city or a county) that had a history of racially discriminatory patterns and practices was required to get preclearance, or permission from federal authorities before changing any voting rules or requirements. The purpose of preclearance was to make sure that any locality that had a history of racial discrimination against voters could not create new rules that would racially discriminate against voters. And the government looked hard at proposed changes: Between 1982 and 2006, the Justice Department denied preclearance to more than 700 voting changes after determining that they were discriminatory. 

 Because of the way the VRA was written, Congress had to reauthorize it over the years. This meant they had to see how it was working and then vote on it again in order to keep it as a law. After the VRA was reauthorized in 2006, Shelby County, Alabama, challenged the law. Shelby County was one of the areas required to get preclearance for any voting changes. The county went to court, claiming the key parts of the VRA, including the part that required preclearance, were unconstitutional. They also argued that the way the law decided which areas or places had to get preclearance was unconstitutional.

In 2013, the case made it to the U.S. Supreme Court. The case was called Shelby County, Alabama v. Holder. (Eric Holder was the U.S. attorney general at the time, so he was responsible for enforcing the VRA.) The court had to decide this issue: Does the way in which the VRA decides which localities need preclearance actually fulfill the 15th Amendment? If not, the part of the VRA describing the "formula" for determining preclearance is unconstitutional.

The court decided 5-4 in favor of Shelby County. The majority opinion, written by Chief Justice John Roberts, was that the way the WRA decided which localities needed preclearance was unconstitutional. In effect, this got rid of preclearance itself. The court stated that preclearance must be justified by a showing of current needs. The majority said that conditions for Black voters in the places covered by the VRA had improved so much that they didn't need the rules of the VRA anymore.

Justice Gisburg stated her umbrella analogy in her dissenting opinion in the Shelby County case. (The dissent is the Supreme Court minority's disagreement with the majority's decision.) Representing herself and the other dissenters, she argued that deciding whether or not to keep the VRA was a matter for Congress to decide, not the court. But since the court was weighing in on the law, she criticized the majority's reasoning. Her main criticism was that some conditions for African Americans' voting rights in the places covered by the VRA had improved because of preclearance. Doing away with preclearance was setting up the real possibility for what she called "backsliding" to the discriminatory practices of the past.

Copyright, Constitutional Rights Foundation, 2020.