07/01/2013 06:30 pm ET Updated Aug 31, 2013

In Voting Rights Act, Subtleties Matter Most

The following post was co-authored by R.B. Bernstein, Adjunct Professor of Political Science and History in the Skadden, Arps Honors Program in Legal Studies at City College of New York, Distinguished Adjunct Professor of Law at New York Law School, and author of 'The Founding Fathers Reconsidered' (2009) and 'Thomas Jefferson' (2003).

This week's decision by the U.S. Supreme Court striking down a key piece of the 1965 Voting Rights Act (VRA) could generate controversy in an empty bar. Amid all the anger and shouting, let's take a closer look at the background and context of this case and the statute at its heart. The problem with what the Court did in Shelby County v. Holder is that it missed the subtle ways in which state and local governments have used their power to regulate the vote to dilute and even suppress it.

The problem focuses on an early success of the VRA. In early 1969, VRA enforcement stood at a crossroads. As originally conceived, the Act attacked the wide range of voter exclusion strategies adopted by Southern states to deny African Americans access to the polls -- for example, (1) unfairly applied literacy and/or understanding tests requiring voters to read, understand, and interpret any section of the state constitution to the satisfaction of a white (usually hostile) election official, (2) complicated registration requirements excluding minority voters on technical grounds and (3) financial barriers such as poll taxes. One simple way to undermine the black vote was to set up polling places in areas inconvenient for blacks for instance, in distant locations or in the middle of white sections of the town or county. By 1969, those methods were all but dead, thanks to combination of court rulings and the effective use of the pre-clearance provisions of the Act's Section Five.

Being able to cast a ballot, however, was not the same thing as having an effective vote. Recognizing this subtle difference, Southern state and local election officials adopted new laws and procedures aimed not at excluding African American voters, but at diluting the impact of their vote on an election's outcome. They achieved this goal by creating racially-gerrymandered districts that either packed African American voters into one district (limiting blacks to a single electoral seat while leaving other districts with white majorities); cracked the black population into many districts; or switched to at-large elections (both of these methods submerging black votes in a wider pool of white votes). The result was that, no matter how Southern blacks voted, few or none of their candidates won an election.

Just four years after the VRA's enactment, these changed statutes left the proper scope of the Voting Rights Act open and highly debated. White Southern political leaders argued that Section Five's precertification procedures, which allowed federal officials to oversee state or local electoral changes to defend minority voters' rights to vote, did not apply to their reworking of voting procedures. They insisted that they had every right to redraw district lines or to shift to at-large elections free from federal interference. So long as they did not exclude minority voters from the polls, pre-certification did not apply to them. To support this position, Southern whites invoked the Act's legislative history, citing the testimony of former Assistant Attorney General Burke Marshall, who argued that "the bill was aimed at the problem of registration" exclusions -- that is to say, vote denial -- alone. Southern blacks and the Justice Department differed vehemently, arguing that the right to vote was equally affected by dilution of voting power as well as by an absolute prohibition on casting a ballot. They stressed the value of a meaningful vote with practical consequences for an election's outcome.

In Allen v. State Board of Elections (1969), seven of nine Justices agreed with this view, holding that vote dilution did fall within the VRA. Pointing out that vote dilution could affect the right to vote as much as a prohibition on voting would, Chief Justice Earl Warren declared for the majority: "The Voting Rights Act was aimed at the subtle, as well as ... obvious, state regulations which have the effect of denying citizens their right to vote because of their race."

Nothing has changed about this principle in the more than four decades since Allen. Yet, in his opinion for the Court in the Shelby County case, Chief Justice John Roberts ignores the more subtle forms of "state regulations which have the effect of denying [minorities] the right to vote." Roberts proclaims the Voting Rights Act a success, highlighting changes in the "racial gap in voter registration and turnout." On the surface, he has a point. Yet the subtleties of granting or limiting access to the polls matter no less in 2013 than they did in 1969. State and local limits on registration and voter turnout are not only elements of vote dilution, but can foster an atmosphere of vote denial as well. As the ongoing fight over Texas's electoral district maps show, the subtle effects of minority vote dilution remain ongoing problems. And no amount of cheerful rhetoric about progress made since 1965 will eliminate that disturbing, subtle reality.