Over the weekend, President Obama and about a hundred members of Congress trekked to Selma, Alabama, to join civil rights leaders in marking the 50th anniversary of the vicious beating of civil rights activists attempting to cross the city's Edmund Pettus Bridge. The 1965 attack on peaceful protesters that came to epitomize the brutality of Southern racism is credited with spurring Congress to pass the Voting Rights Act that same year, resulting in one of the crowning achievements of the civil rights movement. For decades, this law ensured that, in areas with histories of finding new ways to keep minorities from the polls, any proposed voting changes would have to be vetted and approved by the US Justice Department.
The story did not end there. In its 2013 decision on Shelby County v. Holder, the US Supreme Court gutted the core measure of the Voting Rights Act, known as Section 5. Suddenly, nearly fifty years of federal civil rights oversight vanished, leaving people in Southern states and cities to fend for themselves against a new crop of restrictive voting laws that have come out in force since the ruling.
Perhaps nowhere have the rapid onset of those changes been felt more than the central Georgia town of Macon. Shortly after the Shelby decision, I visited Macon. It was a sweltering Labor Day afternoon, and C. Jack Ellis—the first and only black person to be elected mayor of Macon—was pounding the pavement ahead of a mid-September election. September is an odd month for holding an election, and it had certainly not been the customary Election Day in Macon. But these were not usual circumstances. The city's new voting schedule was the result of a months-long battle over a controversial voting change whose fate was ultimately decided by the by the Shelby decision. So Ellis was scrambling to spread the word of the new election date.
Six weeks earlier, just before the Supreme Court's ruling, the Justice Department's Civil Rights Division was taking a close look at the divisive plan to move Macon's off-year elections from the usual November date to the summer. The city's black community had implored the federal agency to object to the change under Section 5 of the Voting Rights Act; black turnout can reduce significantly during the summer months. The controversial law would also make Macon's local elections nonpartisan, a move that some anticipated would erode the city's predominantly black Democratic voting bloc.
The DOJ itself seemed skeptical of the proposal to change the date. Apparently not satisfied with the initial explanation for the Republican-backed plan, the federal agency had asked for more information on the new law and also extended its review period. In the nearby town of Augusta, the department had recently blocked a similar date change, also pushed by Republicans, on the grounds that it would discriminate against black voters by disproportionately impeding their access to the polls there.
If the DOJ was going to try to block the Macon law, it never got the chance. On June 25th, the Shelby decision dropped. Suddenly, 48 years of federal oversight vanished, clearing the way for the date-switch to take effect.
In the subsequent months, fresh battles began across the country over the issue of equal access to the ballot box. Texas and Alabama made headlines by quickly announcing that the state legislatures would renew efforts to enact restrictive voter ID laws that the federal government had previously blocked. North Carolina and a number of other states followed close behind.
Beginning in 1965, city and county governments had accounted for many of the Justice Department's Section 5 objections. After Shelby, these smaller jurisdictions also began quietly and quickly implementing new voting laws. This included a number of Macon's neighbors. In Greene County, Georgia, for instance, local officials began implementing a new and controversial redistricting plan that the DOJ had previously objected to on the grounds that it was discriminatory. In nearby Morgan County, a divisive plan quickly surfaced that would eliminate more than half of the county's polling sites. And in October, the NAACP scrambled to stop rural Baker County from eliminating all but one of its five polling places.
Across the board, civil rights advocates and local leaders told me that, in the absence of federal oversight, they felt a diminished sense of confidence that discriminatory voting laws could be effectively blocked. Section 5 was not the only means to challenge bad laws, but, by stopping them before they took effect, it was by far the most useful.
"Our whole argument was based on Section 5," said Georgia state representative James Beverly, whose district includes Macon, referring to the effort to oppose the date-change in that town. "There are so many things we have to consider now. Like what if we go to court and lose? Then we create a precedent that could negatively impact other areas. Our federal courts here are not necessarily friendly when it comes to the Voting Rights Act."
With the opposition unable to agree on a strategy to fight the date change, Macon moved forward with its September election. When locals cast their ballots that month, Ellis, who left office in 2007, came in behind the city's white incumbent, and subsequently lost the election in an October runoff. "I'm disappointed at the low turnout, for such an important election as this," Ellis told a local radio station after the vote. A black city council member in a majority-black district also lost to a white challenger in the September election.
For months, there was talk of suing to block Macon's date-change, but no legal challenge emerged. Nevertheless, the new election law remained contentious. Last February, NPR ran a segment linking the black election losses in the Macon election to the Shelby ruling. Mercer University law professor named David Oedel, writing in the Macon Telegraph, bristled at the NPR story, saying that it had disregarded local nuances in order to make the Macon election fit a narrative of post-Shelby voter suppression. He argued that Shelby had not let loose a voting rights catastrophe in Macon—and that the date switch was both legal and equitable. (The law's authors said it was necessary to bring Macon into uniformity with the several other Georgia towns that had merged their city and county governments.) The black candidates, Oedel said, had "lost fair and square."
While the NPR story could probably have included more background, in the long run, the situation in Macon—specifically, the prolonged and inconclusive disagreement over particulars of a voting law—was exactly what the federal preclearance was so effective at stopping. Under Section 5, bad laws were blocked, and laws that were deemed fair were given the endorsement of a federal agency. Determining whether a voting law like Macon's date-switch is discriminatory relies on vast sets of variables that no one commentator can easily parse. (Unlike cutting early voting days or eliminating polling places, changing a date does not inherently limit polling access.) Before Shelby, this was just sort of data-crunching that the Justice Department's army of eggheads was ready to deploy with each applicable voting change.
After Shelby, the business of parsing and challenging new voting rules has become far messier. Although the Supreme Court did let stand Section 2 of the Voting Rights Act, which lets people sue to invalidate discriminatory laws that are already in place, that route is far more difficult. Reliance on Section 2 shifts the burden of proof from away from those writing a law and on to the plaintiffs bringing a challenge, noted Myrna Perez, director of the Voting Rights and Elections Project at the Brennan Center for Justice. For civil rights advocates, this can mean an uphill—and expensive—battle.
"Under Section 2, we're constantly having to fight with [authorities] to turn over things like old email," Perez said. "It makes it more resource intensive and more difficult to amass the evidence required to argue there is a problem."
In Macon, residents have threatened Section 2 action against certain plans to alter voting rules. In late January, black leaders from Macon and other parts of Georgia converged on the office of the local Board of Elections to oppose a round of proposed poll closures that they argued would have a disproportionate impact on the city's black communities. The meeting grew heated at times as black leaders made it clear they would file legal action if the board moved forward with the precinct consolidations. (The meeting ultimately led to the formation of a community panel to further assess the plan.)
"Getting the right to vote wasn't an easy task—walking across the Edmund Pettus bridge wasn't an easy task," Ellis said during the session. Addressing the poll closures, Ellis invoked the now-absent federal authority. "If that was still in place, you couldn't do this without Justice Department clearance."
*Correction: An earlier version of this story incorrectly stated that C. Jack Ellis was voted out of office in 2007. In fact, he left office that year because of term limits.
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