The Docket: The Rise And Fall Of The Voting Rights Act Of 1965 : The NPR Politics Podcast The Voting Rights Act of 1965 was born from the civil rights movement of the '50s and '60s, but in recent years the Supreme Court has effectively nullified its key provisions. We explore why the law was first passed and what it means for voters of color now that its powers have been gutted.

This episode: congressional correspondent Susan Davis and national justice correspondent Carrie Johnson.

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The Docket: The Rise And Fall Of The Voting Rights Act Of 1965

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(SOUNDBITE OF THE BIGTOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")

SUSAN DAVIS, HOST:

Hey there. It's the NPR POLITICS PODCAST. I'm Susan Davis. I cover Congress.

CARRIE JOHNSON, BYLINE: And I'm Carrie Johnson, national justice correspondent.

DAVIS: And this is The Docket, our ongoing series where we explore the big legal questions of the day. And today we're looking at the Voting Rights Act - where it came from, why it was passed and what happens now that its primary provisions have been thrown out by the Supreme Court. Now, first, a quick history lesson. In 1870, after the Civil War, the United States added the 15th Amendment to the Constitution as part of what are known as the Reconstruction amendments. The 15th Amendment guaranteed the right to vote to Black men. But almost a century later, Congress still found it necessary to pass the Voting Rights Act. Why?

JOHNSON: Well, plain and simple, Sue - discrimination. Southern states passed their own laws that made it more difficult for Black voters to get to the ballot. There were literacy tests, poll taxes and murder, waves of violence and lynchings. For a brief period, Black voters did get to the polls after the Civil War, and they were able to elect candidates of their choice, many of them. But that all ended because of state action, the violence I talked about and interpretations by the Supreme Court.

And by the 1960s, many decades later, white voter registration in some Southern states was 50 points greater than Black voter registration. The federal government kept finding itself in legal conflict with states over the issue of access to the ballot. And that conflict is something that professor Atiba Ellis has been studying for years. He teaches law at Marquette University, and he told me that by the 1960s, the federal government was tired of fighting in court with states that kept passing discriminatory voting laws.

ATIBA ELLIS: The typical remedies to fix this problem didn't really work. One could sue and, say, knock down one disenfranchising practice in a lawsuit. But the problem is lawsuits often take years to pursue and are expensive. And even if you strike down one provision, then others can arise to take its place. This is often the problem in the south. So what was needed was a comprehensive solution in sort of reasserting federal intervention. And in a way, what history shows is that that sort of federal intervention was basically the main thing that could affect systemic change to the problem of racial discrimination in voting.

DAVIS: But it wasn't just the backlash to Jim Crow-era voting laws that led to the passage of the Voting Rights Act in 1965. I mean, there were massive public events that convince not just Congress, but the public that something needed to change.

JOHNSON: Yeah, absolutely. We're talking here about the civil rights movement of the 1950s and '60s in particular. Here's professor Ellis again.

ELLIS: At the heart of that movement, you know, item No. 1 on that agenda was voting rights. All too often, folks forget that Martin Luther King Jr. gave a major address at the Washington Monument years prior to 1963 and "I Have A Dream." He gave a speech in 1957 called "Give Us The Ballot."

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MARTIN LUTHER KING JR: 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.

JOHNSON: How could you not hear Martin Luther King Jr. and not have your attention captured? Those moments did really reach out to people across the country, and so did darker ones, like the time in March 1965 that civil rights leader and then a very young John Lewis, wearing his overcoat in his backpack, began to march toward the Edmund Pettus Bridge in Selma, Ala., in what would come to be known as Bloody Sunday.

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JOHN LEWIS: We're marching today to dramatize to the nation, dramatize to the world that hundreds and thousands of Negro citizens of Alabama, but particularly here in the Black Belt area, denied the right to vote.

JOHNSON: John Lewis and hundreds of other protesters were marching to demonstrate against voter discrimination, and they were met on that bridge by armed state troopers.

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UNIDENTIFIED STATE TROOPER: It'd be detrimental to your safety to continue this march.

JOHNSON: Many of those marchers were attacked and beaten viciously by troopers. Seventeen people were hospitalized.

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JOHNSON: The footage of these protesters being sprayed with tear gas and clubbed with police batons really shocked the conscience of the country and helped push President Lyndon B. Johnson to fight for the Voting Rights Act.

ELLIS: This was something that President Johnson not only could not deny, it was instances like this that he pointed to in order to justify pushing forward with the passage of the Voting Rights Act.

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LYNDON B JOHNSON: This act flows from a clear and simple wrong. Its only purpose is to right that wrong.

DAVIS: OK. So that is how the Voting Rights Act became law. But let's talk about some of the key provisions of that law and how it impacted voting in the country. Carrie, specifically, I'm thinking about Section 5, which gave the attorney general the power to freeze new voting laws in states until they were deemed to not have any discriminatory purpose or effect.

JOHNSON: That's right. This Section 5 had a huge impact on Black voter registration, particularly in the South. To take one example, in Mississippi, voter registration among Black voters rose from less than 7% in 1964 to almost 60% in 1967.

DAVIS: Wow - in three years.

JOHNSON: Yeah, just a very short period of time - but Southern states would go on to challenge the law in court, arguing it gave the federal government too much power, that states should be in charge of their own elections - an argument we still hear today. In fact, South Carolina went straight to the Supreme Court in 1966, one year after the Voting Rights Act passed. But the Court held that act was constitutional. And that argument would fail in court. That states' rights argument would largely fail in court until 2013 in a case called Shelby County v. Holder. In that decision, Chief Justice John Roberts says a lot of things have changed since 1965, that the world had changed - there were any number of elected Black officials - and that things on the ground now were way different than they had been in the past.

ELLIS: That was the essence of his argument. But the problem is that officeholders and majorities across the country have reinvented racial voter suppression. And even though there are some successes, the existence of things like strict voter identification laws, the use of voter purges, the use of redistricting to dilute minority voting rights - all of those things continue to have effect. And they were having effect even in 2013. And Chief Justice Roberts did not talk about that breadth of racial voter suppression.

JOHNSON: That was professor Atiba Ellis of Marquette University. And he points out that in that decision, the Supreme Court essentially gutted Section 5, making it impossible for the Justice Department to enforce and also to keep track of all the voting changes and new laws happening around the country in places with a history of discrimination. Whereas in advance, DOJ would get notification, and those laws would be frozen. Now, states were free and localities were free to go ahead and advance those changes on their own.

DAVIS: And there have been more restrictive voting laws popping up across the country, especially as the country has become more diverse, which brings us to this present moment. This year, the Supreme Court once again ruled on the Voting Rights Act and again weakened another major provision of the law, Section 2.

JOHNSON: That's right. Section 2 gave the federal government the legal authority to challenge state voting laws that discriminate on the basis of race, color and language minority groups. In fact, in that decision in 2013, Shelby County v. Holder, Chief Justice John Roberts cited Section 2 as a permanent nationwide ban on racial discrimination in voting. But just last month, the Supreme Court made it a lot harder to sue using Section 2, that remaining section of the law. The conservative justice said in their majority opinion that many voting restrictions do not pose a substantial burden and that some inconvenience for voters is OK. They also said that, in many instances, states could raise the issue of election integrity, also known as voter fraud, as an explanation for making lots of changes to the way voters go to the polls and that that would also likely be OK as a basis to uphold some of these new voter restrictions. And that has left the once-powerful Voting Rights Act very, very weak.

DAVIS: All right. Let's take a quick break. And when we get back, we'll talk about how civil rights advocates are viewing these new laws.

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DAVIS: And we're back. And we just walked through the history of the Voting Rights Act. So now we want to talk about what the future might hold. And to do that, Carrie, you have invited a special guest to the podcast, so I will let you do the introduction.

JOHNSON: Yes, a very special guest - we have Mahogane Reed from the NAACP Legal Defense Fund here with us. Hi, Mahogane.

MAHOGANE REED: Hi.

JOHNSON: After the Supreme Court's latest decision on voting rights and as we see more states propose new voting restrictions, how would you describe this moment in the fight for voting rights?

REED: Yeah, it's a critical moment in the fight for voting rights. Since the Supreme Court announced the Shelby County decision, we've seen an onslaught of new voting restrictions, primarily in the South, but across the country - new voter ID laws, voting purges across the country that really inhibited the right of all types of people - Black people, people of color, people with disabilities, elderly people - to register vote - to vote and to have their vote counted. But just since the November 2020 election, 49 states have introduced more than 400 bills that make it harder to vote and restrict access to the ballot.

JOHNSON: Some of the response that we're seeing given the idea that the courts are stacked against you and, at least for now, Congress does not have the votes to advance, for instance, a reauthorization of the landmark 1965 Voting Rights Act, seems to put the weight on people in cities and states to organize voters and to try to maximize turnout. I wonder how you feel about those kinds of efforts and if you feel that can be enough in the absence of protections from the law or the courts at this point.

REED: Yeah. Those efforts are so important to inform voters, to motivate voters and to get voters to the polls. It was largely the efforts of grassroots organizations in organizing voters that led to the tremendous voter turnout that we saw across the country among Black and Latino voters and other voters of color. And so their sustained effort is absolutely critical to ensuring that, notwithstanding the difficulties, the current difficulties imposed on voters and the unwillingness of federal institutions to intervene, that voters have the information they need to navigate ever-changing and ever-more burdensome voting systems to show up at the polls and to have their voices heard and their votes counted.

But even so, you know, we can't rely on Black voters and other voters of color to do this alone. We can't rely on grassroots organizations to organize voters year after year, election after election, in the same way we can't rely on a voting rights advocates to litigate our way out of this. The onslaught of new voting laws - it's just - it's too - it's so heavy. And intervention from Congress is absolutely critical. And so while the folks with their boots on the ground continue to organize voters and voters continue to navigate restrictive voting systems and processes, we at LDF will continue to press the federal government to pass the John Lewis Voting Rights Advancement Act and the For The People Act.

DAVIS: We're a politics podcast, so I'm going to ask you a political question. I'm curious what you make of the argument that I've heard from political types that say there could be an opposite effect of some of these new laws in that when people feel like a right might be taking away from them, they're much more engaged and that these voter restrictive - these more restrictive voting laws could increase voter awareness, could increase voter participation, especially among communities like the Black community that are so aware of efforts to suppress their vote and have high levels of voter engagement, that even though there might be new barriers, people are just going to work harder to climb over those barriers.

REED: Yeah, that's a fascinating argument that I heard and sort of felt a bit repulsed by that the burden is on Black voters and other voters of color...

DAVIS: Yeah.

REED: ...To overcome voting barriers. That is - that certainly should not be the case. The law is such that it should not be the case. And so that counter argument, I think, is a hollow one that attempts to, from my perspective, clean the hands of the legislatures that are passing these new laws and, you know, see the silver lining in a situation where there literally is no silver lining. We cannot continue to place the burden on Black voters and other voters of color to overcome the systemic barriers to voting in the name and in the game of politics. It's just unconstitutional and unlawful.

DAVIS: All right. I think we'll leave it there. Mahogane Reed from the NAACP Legal Defense Fund, thank you so much for joining the POLITICS PODCAST.

REED: Awesome. Thank you so much for having me. I really appreciate it.

DAVIS: And that's a wrap for us today. We'll be back tomorrow. I'm Susan Davis. I cover Congress.

JOHNSON: And I'm Carrie Johnson, national justice correspondent.

DAVIS: And thanks for listening to the NPR POLITICS PODCAST.

(SOUNDBITE OF THE BIG TOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")

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