“We’re still paying for defeating Custer!” exclaimed OJ Semans, Sicangu Lakota co-director of the voting-rights group Four Directions. He was laughing, but described himself as entirely serious in noting that 137 years to the day after Lt. Col. George Armstrong Custer and his forces were wiped out, the U.S. Supreme Court struck down an important section of the Voting Rights Act, which protects minority voters.
Congress passed the VRA in 1965 and reauthorized it with nearly unanimous support in 2006. The portion the Supreme Court invalidated was Section 4, which provided the formula by which states or local governments with a history of discrimination were covered by Section 5’s “preclearance” procedures. When planning new voting laws or practices, covered jurisdictions had to run them by the Department of Justice or the courts for advance approval.
Following the court’s June 25 ruling in Shelby County v. Holder, that is no longer necessary—unless Congress can come up with a new formula for preclearance.
“The decision is a great loss to Native Americans,” said Judith Dworkin, managing partner of the law firm Sacks Tierney and co-author of an amicus brief on behalf of the Navajo Nation, Semans and others that delineated reasons why the court should uphold the law. “I went through the decision to see if there was any mention of Native people and found no references. It was very disappointing.”
Writing for the five-judge majority, Chief Justice John Roberts said preclearance, which applied to some states, but not all, was “a dramatic departure from the principle that all states enjoy equal sovereignty.” He opined that this differentiation among the states was no longer necessary. Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito concurred.
Though “voting discrimination still exists; no one doubts that,” Roberts explained, great strides have been made. He pointed out, among other examples, that two Southern towns where voting-rights advocates were once tear-gassed, beaten and murdered now have African-American mayors.
President Obama said the Supreme Court had upset “decades of well-established practices that help make sure voting is fair,” while U.S. Attorney General Eric Holder called the decision “a serious setback for voting rights.” Holder said the Justice Department will continue to challenge discriminatory voting practices.
So will the American Civil Liberties Union, said Dale Ho, director of its Voting Rights Project: “Today’s decision does not change the fact that voting discrimination remains unlawful.”
Semans saw it this way: “Section 4’s rules were the ammunition for Section 5. Without the ammunition, the gun doesn’t work. Basically they’re saying that states and counties can discriminate against us until, or if, Congress gets around to devising a new formula.”
Supreme Court Justice Ruth Bader Ginsburg’s dissenting opinion is scathing. “The Court errs egregiously,” she wrote. She did not buy the states-rights argument, claiming Congress’s power is “at its height” when protecting the right to vote. She noted that the majority opinion says that discrimination still exists. She went on to list current-day examples, including gerrymandering, creation of at-large districts that dilute minority votes and more.
“But the Court today terminates the remedy that proved to be best suited to block that discrimination,” wrote Ginsburg, who was joined in her dissent by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.
“Look at a place like South Dakota, which has long been notorious for restricting Native voting rights,” said Greg Lembrich, legal director of Four Directions and an attorney at the firm Pillsbury Winthrop Shaw Pittman. “Right now, because of the Shelby v Holder decision, there are no longer any covered jurisdictions there. Lembrich noted that, among other issues, some reservation residents in South Dakota and in other states do not have as many days to vote as those living off reservations—a problem Four Directions is seeking to solve.
Preclearance wasn’t important only because it made the Justice Department and the courts into voting-rights gatekeepers, according to Dworkin. It also made people think, she said: “A state or county proposing a new rule may not have realized at first that the change was discriminatory, but the need to preclear it meant they considered that. There was a deterrent effect.”
Dworkin said the Shelby County v Holder ruling created long-term concerns for Native communities nationwide, as well as immediate ones, including Arizona’s current redistricting plan, which is before a federal court. “If the court tells us we have come up with another plan, it’ll be done without the protections of Section 5,” Dworkin said.
And without general understanding of hurdles Native voters face, she added: “Those who are not familiar with reservations don’t recognize the barriers to enfranchisement experienced there.”
Just mail in your ballot? Not an option on most tribal homelands, said Dworkin: “Many counties are looking for ways to save money and may turn to this as a way of doing so. But if you live in an isolated place on a reservation and travel many miles once a week to check a post office box you share with others, you may not receive your mail-in ballot. We need a robust system of polling places to make sure reservation residents can vote.”
Lembrich wondered whether Congress could rise to the challenge of creating a new preclearance formula: “If we had a functional Congress, we could see this as an opportunity to write the Voting Rights Act for the 21st century. Some jurisdictions might come off the list of those needing preclearance, but I think you would see Native American jurisdictions added.”
However, Lembrich said, “That is predicated on Congress doing something. Anyone who has been following Washington and its gridlock will wonder if that’s probable.”
Litigation under another portion of the VRA—Section 2—is still possible, though cumbersome and time-consuming, Ginsburg wrote in her dissent: “An illegal scheme might be in place for several election cycles before a [Section 2] plaintiff can gather sufficient evidence to challenge it.”
Semans saw it this way: “Section 5 implementation wasn’t perfect. The DOJ precleared use of voter IDs even where requiring them discriminated against Native Americans, who tend not to have the types of ID that white people have. South Dakota simply ignored preclearance for years. But Section 2 is not affected at all by this decision.”
The voting-rights cases Four Directions is now involved with—Brooks v Gant in South Dakota and Wandering Medicine v McCulloch in Montana, both of which are still before the courts—were brought under Section 2, Semans pointed out.
The group will continue to fight for equality for all, Semans said. “What one gets, all deserve. If states or counties discriminate, guess what? We’re coming for you.”
This article was written with support from the George Polk Center for Investigative Reporting.