In Selma, the violence shocked America

Last weekend, President Obama joined thousands of Americans — elected officials and ordinary neighbors — to commemorate the 50th anniversary of "Bloody Sunday," when Alabama state troopers and local law enforcement officers ambushed peaceful marchers at the Edmund Pettus Bridge in Selma, Alabama.

 All were there to honor the perseverance, the courage, the determination, the principles, the sheer bravery of marchers who were attacked and beaten by frenzied law enforcement officers for the offense of demanding the right to vote in Alabama, a right guaranteed by the Constitution.

That one notoriously violent incident is credited with giving the 1965 Voting Rights Act the impetus it needed to pass Congress. It's no doubt true that without that march, the Voting Rights Act might not have passed, at least not in 1965.

But for all the bravery and determination of those peaceful marchers, it was not they but the other side that deserves credit for making the Voting Rights Act "must pass" legislation. It was the state troopers and local police who made the greatest impression on members of Congress and the American public. Black men and women had tried for decades to win the right to vote in Alabama and other states. Their struggles, though not universally known, were widely reported. Most Americans agreed that it was shameful and un-American to deny upstanding citizens the right to vote.

But most Americans did not know how viciously and sadistically white authorities would defend their contention that African-Americans should never be allowed to vote, regardless of what the Constitution said. They were willing to beat peaceful fellow citizens with baseball bats and truncheons, run over them with mounted police, hit them, drag them, do whatever had to be done, including murder, to stop them from walking to Montgomery and demanding their constitutional right to vote. When Americans saw the reprehensible, inhumane, irrational fury of those white officers, they demanded change. They demanded passage of the Voting Rights Act.

Just as images of fire hoses and police dogs attacking peaceful demonstrators had turned America's sentiment in favor of the 1964 Civil Rights Act, the images from the Edmund Pettus Bridge turned Congress and America in favor of the Voting Rights Act.

The sadistic men who beat helpless marchers were trying to stop African-Americans from winning the right to vote in Alabama. Instead, they achieved exactly the opposite of what they had wanted. The instigators of hatred and violence against innocent, peaceful people assured the passage of the most sweeping voting legislation since the 15th Amendment 95 years before.

Court gives Voting Rights Act a reprieve

The U.S. Supreme Court dodged a valid constitutional issue Monday, and the civil rights establishment dodged a bullet. The court ruled, 8-1, that a utilities service district, which did not exist in 1965 but was nonetheless subject to the 1965 Voting Rights Act, could ask to be exempted from the law. Therefore, the court need not decide whether the Voting Rights Act's punitive provisions were constitutional.

This narrow ruling saves the VRA from a constitutional test that it almost certainly would lose. The challenge to the 44-year-old law by the Northwest Austin Utility District created a perfect vehicle for testing the constitutionality of the Voting Rights Act. It seemed clear at oral arguments that a majority of the court doubted the constitutionality of the law, but the court's conservatives, except for Justice Clarence Thomas, were reluctant to strike down a law that has transformed American elections (see Barack Obama, 2008). It seems likely that this reprieve for the VRA was the work of Chief Justice John Roberts, who wrote the majority opinion signed onto by conservative and liberal justices.

Section 5 of the law presents several problems. The law singles out several electoral districts (whole states or individual counties, mostly in the South) for special treatment. These electoral districts must pre-clear any changes in election laws or procedures through the U.S. Justice Department. This singling-out conflicts with the equal protection clause of the 14th Amendment, the very clause upon which much civil rights legislation is based. The law also usurps the authority of the states to determine their own election procedures, as specified in the Constitution.

The most glaring problem with Section 5 is that it pretends nothing has changed since 1964. The affected jurisdictions are those where minorities were under-represented in voter registration in 1964. When Congress reauthorized the Voting Rights Act for another 35 years in 2006, it did not re-examine voter registration to determine which jurisdictions were discriminating against minorities. It used the 42-year-old voter statistics from 1964. Anyone who thinks electoral politics in the South has not changed since 1964 is disconnected from reality.

With its diplomatic decision not to rule on the constitutionality of an iconic landmark of civil rights, the court has given the Voting Rights Act a reprieve, but Congress should take the hint and revise the VRA. Its provisions for ensuring fair and open voter registration and voting should remain, but its pre-clearance provision should be revised to reflect current conditions, not the long-buried statutory segregation of the 1960s. Pre-clearance was designed as a means of punishing those states and other jurisdictions that refused to open the voting process to minorities and that built fanciful new obstacles each time an old obstacle was struck down. At the time, such punitive measures were probably justified, but they aren't today. Those jurisdictions are now electing minority sheriffs, commissioners, legislators and members of Congress. In many cases, minorities now control the reins of power.

The VRA includes a "bailout" provision for jurisdictions that are no longer discriminating, but that provision has been narrowly interpreted. Wilson County is subject to pre-clearance, and when I asked 25 years ago why the county, which had elected minorities at-large, did not apply for bailout, I was told that the procedure was hopeless and any effort would be futile. Since 1965, I have read, only 17 jurisdictions have successfully sought bailout.

The VRA, which has been called the most effective civil rights legislation in history, today has a primarily symbolic purpose. If Congress wants to keep that symbol in place, it must revise the law to comply with the Constitution and with simple logic before the Supreme Court has another opportunity to consider the law's constitutionality.