Mariner Books
To many people, the Voting Rights Act of 1965 (VRA) flourished, largely unharmed, for decades until John Roberts took an ax to it in 2013. This version of history elides a much more complicated reality: The right wing was trying to undo its impact from day one.
The sustained legal assault began mere days after Lyndon Johnson signed it into law in August 1965. By late September, the state of South Carolina filed a complaint directly to the U.S. Supreme Court. The state asserted that the VRA unfairly singled out the “sovereign state” of South Carolina, created an unequal system of voting between the states, and punished South Carolina for racial misdeeds when, the state argued, a tiny county in Idaho and a sparsely settled county in the northernmost corner of Maine had also used a literacy test. Chief Justice [Earl] Warren, in an 8 to 1 decision in March 1966, quickly affirmed its Constitutionality.
“Congress had found that case-by-case litigation was inadequate to combat widespread and persistent discrimination in voting, because of the inordinate amount of time and energy required to overcome the obstructionist tactics invariably encountered in these lawsuits,” Warren wrote, in a full-throated judicial endorsement of the necessity for Congress to use its Constitutional powers in the face of willful Southern roadblocks. “After enduring nearly a century of systematic resistance to the Fifteenth Amendment, Congress might well decide to shift the advantage of time and inertia from the perpetrators of the evil to its victims.”
Yet even this decisive decision would not end the lawlessness and obstinance of Southern whites. Southern legislatures continued to blithely ignore the VRA and the Supreme Court. In Mississippi, for example, almost immediately after the Court issued its ruling, the state legislature delivered its backlash: an overhaul of state election law with hundreds of minor changes, all designed to reduce the power of newly enfranchised Black voters. One of them would have allowed counties to elect boards of supervisors-at-large—ensuring the white majority would select every member—rather than from districts. Legislators refused to submit the new laws for preclearance.
In 1969’s Allen v. State Board of Elections, the Court rolled up four cases of seemingly deliberate defiance across two Southern states, and Warren restated that preclearance applied to any change, period. The VRA, he wrote, “was aimed at the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of race.” Moreover, the Chief Justice reasserted that the “legislative history lends support to the view that Congress intended to reach any enactment which altered the election law of a covered state in even a minor way.”
These were not the first challenges to the VRA, and they would not be the last. Southern resistance continued unabated and ultimately outlasted Warren and his allies on the Court. By then, Lewis Powell’s project on remaking the judiciary and ’s memo detailing how to win the hearts and minds of young conservative lawyers provided new oxygen and allies for these antidemocratic arguments that had previously lost at the high court. That long-term success, however, followed a carefully crafted antidemocratic playbook. Roberts’s 2013 ruling in Shelby County v. Holder that the VRA singled out sovereign Alabama required Powell’s plan to win the Court, [Robert] Bork’s intellectual vision, Horowitz’s appeal to the next generation of lawyers and judges—and all the funders and activists that those conservative visionaries inspired.
From his seat on the Supreme Court, Lewis Powell would urge on these forces—including those looking to take down the still nascent VRA. It was a strategy rooted not in memos and position papers, but also in good old-fashioned racism. This challenge to the VRA did not emerge organically, but grew from more than a decade of racist strategies designed to counter the gains of the civil rights movement. And it is here that the GOP project to weaponize the courts to control American elections collides with their battle to limit voting rights.
With Powell flexing his muscle on the Court, a little-known but crucial Supreme Court case, 1979’s City of Mobile v. Bolden (decided in 1980), would signal the beginning of the Court’s retrenchment on voting rights, and the ascendance of new theories about race neutrality and a color-blind Constitution that, twinned with originalism, would blossom into the faux-legal concepts that conservative activists and academics would use decades later to undo the VRA in Shelby County as well as affirmative action. This notion—historical fiction in a nation where race has never been neutral—was incubated in the activist conservative foundations Powell’s memo had urged into the vanguard of the conservative movement.
What’s so shocking—and important—about the Mobile case is how close the conservative legal movement came to unraveling the effectiveness of the VRA so long ago, how quickly the dream of multi-racial democracy nearly perished before it even had a chance to breathe.
Just fifteen years after the VRA and the Court’s landmark 1960s cases that enshrined equal protection and the doctrine of “one person, one vote,” it’s startling to behold the speed and the potency of the legal backlash. This was grounded in Powell’s cramped, ideologically driven reading of the VRA cases in order to strategically downgrade the need to safeguard the vote—and to uncritically accept a Mobile, Alabama, electoral structure that created a permanent white power establishment as somehow “race neutral.”
“Their freedom to vote has not been denied or abridged by anyone,” the Court ruled of the Black plaintiffs in the case. “The Fifteenth Amendment does not entail the right to have Negro candidates elected . . . . That Amendment prohibits only purposefully discriminatory denial or abridgment by government of the freedom to vote ‘on account of race, color, or previous condition of servitude.’ Having found that Negroes in Mobile ‘register and vote without hindrance,’ the District Court and Court of Appeals were in error.”
This round of the voting rights war would go to Powell—an early and telling victory for “race neutrality” and a color-blind Constitution. The decision in City of Mobile v. Bolden was also a clear sign that many forces within the judiciary and the American political establishment had grown restive and impatient with the expectation that true racial equality should be a permanent feature of American life. They continued to hail the unambiguous success of the VRA in increasing Black registration and turnout rates. But they also made a point of drawing a clear line between the right to vote, reluctantly granted, and the right to hold power, stubbornly opposed.
City of Mobile v. Bolden underlines a key truth of Supreme Court jurisprudence: When the Court changes, so does the law. You might even say there is no law, only Justices.
In this respect, City of Mobile v. Bolden underlines a key truth of Supreme Court jurisprudence: When the Court changes, so does the law. You might even say there is no law, only Justices. The Supreme Court in 1980 was far different from the Warren-era Court that decided all the cases relating to the VRA. What we proclaim to be “the law” actually matters far less than the nine people seated on the Supreme Court. From 1979 onward, that lesson would never be lost on conservatives.
The Court’s decision in City of Mobile v. Bolden also highlighted the importance of the upcoming Congressional debate over the VRA’s reauthorization, which would be required in 1982. Congress and civil rights activists would be ready to add new language that overrode the Court’s decision and reiterated that the VRA was intended to police racial discrimination in voting wherever it is found—whether in intent or effect. But a new generation of conservative activists would be prepared as well; after all, look at what Powell had managed to achieve after a few short years on the bench. And one young conservative lawyer in particular—a future Chief Justice named John Roberts—would find himself right at home in Ronald Reagan’s new morning in America.
Excerpted from the book Antidemocratic by David Daley. Copyright © 2024 by David Daley. From Mariner Books, an imprint of HarperCollins. Reprinted by permission.