Vol. 28 No. 5 (August 2018) pp. 70-72BALLOT BLOCKED: THE POLITICAL EROSION OF THE VOTING RIGHTS ACT, by Jesse H. Rhodes. Stanford: Stanford University Press, 2017. 264pp. Cloth $90.00 ISBN: 0-80479-759-5. Paper $27.95 ISBN: 1-50360-351-2.
Reviewed by Kyle L. Kreider, Department of Political Science, Wilkes University. Email: Kyle.Kreider@wilkes.edu
One of the more startling and consequential decisions of the Supreme Court’s 2012 term was SHELBY COUNTY V. HOLDER (2013). The ruling in the case struck down Section 4 of the Voting Rights Act of 1965 (VRA), a provision which established the formula to determine which governmental entities would be required to seek preclearance from the federal government before changing its election law. How could the Supreme Court strike down a provision that had been a bedrock of civil rights voting law for almost 50 years and had just been renewed by overwhelming majorities in the House and Senate in 2006?
In this timely, well-researched book, Rhodes answers this question by providing the appropriate context and helping the reader understand the historical development of federal voting rights politics. Specifically, Rhodes provides answers to why did “key conservative Republican officials consistently adopt administrative and judicial decisions that undermined the very legislation they previously endorsed?” and “why did the legislative text, administrative implementation and judicial interpretation of the VRA so frequently [work] at cross-purposes?” (pp. 3-4)
While political scientists have often debated which institution – the executive branch or the judicial branch – is best equipped to advance civil rights, Rhodes contends that the argument is “somewhat misplaced” because we should instead think of our branches of government as “fairly fluid institutions whose influence on civil rights policy making can vary dramatically depending on who is occupying them and for what purposes” (p. 5). While the Warren Court and Democratic-leaning bureaucrats have often interpreted the VRA in an expansive way, the Burger, Rehnquist, and Roberts Courts, and Republican-led agencies have often provided more restrictive and state-friendly interpretations of the VRA.
A strength of the book is its process-tracing approach and how that methodology is articulated in the organization of the chapters. In Chapter 1, Rhodes explains the historical context and politics that led to the passage of the VRA as well as the difficulties associated with immediate implementation of the act. Specifically, President Johnson had to manage competing demands within the Democratic Party as well as Republicans who were skeptical of what the administration might attempt to get through Congress. Rhodes notes that “[s]uccessful negotiation of these difficulties required all of the president’s legislative prowess as well as compromise on the part of civil rights activists and liberals who had desired stronger legislation” (p. 37). In the end, the White House, members of Congress, and civil rights activists all had to compromise in order to pass the Voting Rights Act of 1965.
An important element of the Voting Rights Act was how it would be implemented considering how radical the provisions were and the potential for significant “political ramifications of enforcement decisions” (p. 44). The Justice Department, facing competing interests in enforcement, essentially decided to partially enforce the provisions with an eye open at all times to possible political blowback from excessively stringent enforcement. The Justice Department’s reticence, however, to launch an expansive regulatory scheme was overshadowed by the Supreme Court’s endorsement of a broad view of the VRA’s power over state attempts to dilute the vote of black citizens. [*71]
The election of Richard Nixon in 1968 ushered in a new era of voting rights for at least two reasons. First, when the original VRA came up for renewal in 1970 and 1975, the Nixon and Ford administrations were key players in negotiating its possible reform. However, as Republicans quickly realized, watering down the VRA legislatively was politically difficult. Second, as Rhodes argues in Chapter 2, while Nixon and congressional Republicans realized that diminishing the scope of the VRA legislatively was not politically feasible, retrenchment efforts through “less visible, traceable, and participatory institutional channels” (p. 59) was the best course of action. Specifically, Nixon appointed personnel to the Civil Rights Division of the Justice Department who engaged in deliberate efforts to limit the scope of the VRA, including curtailing black voter registration efforts, approving vast majorities of Section 5 preclearance requests, and not holding states accountable for failing to seek preclearance for many election law changes.
In addition to diminishing the effect of the VRA administratively, President Nixon nominated justices – Burger, Powell, and Rehnquist, specifically – who possessed very different views on civil rights and voting rights law than the justices they replaced, resulting in a major change to the Court's interpretation of the VRA. One case in particular that was devastating to Section 5 enforcement was BEER V. UNITED STATES (1976), in which the Court stated that "the purpose of Section 5 has always been to insure that no voting procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise" (425 U.S. 130, at 141). Rather than reading Section 5 to require maximizing minority voting power, the Court read Section 5 to only prohibit attempts to weaken, or minimize, existing minority voting power. In other words, had a jurisdiction discriminated against black voters in the past, the BEER Court’s reading of Section 5 allowed efforts to perpetuate the status quo rather than requiring that jurisdiction to pass legislation to rectify the historical discrimination and proactively increase black voting power.
When the VRA came up for renewal in 1982, President Reagan continued the Republican practice of publicly endorsing renewal but limiting the scope of the act through Department of Justice regulations and Supreme Court appointments. Not only was the VRA renewed for another 25 years in 1982, but the political power of the civil rights movement led to a strengthening of Section 2 and Section 5 language.
In Chapter 3, Rhodes explains that while the VRA was strengthened legislatively in 1982, “conservatives’ ambition to limit federal involvement in protecting the voting rights of citizens of color did not abate in the aftermath” of the vote (p. 107). President Reagan staffed the Office of Civil Rights with appointees who were in agreement with the president’s views on voting rights and loyal to the president’s agenda while President Bush’s Justice Department focused less on voting rights enforcement and more on criminal justice issues. Reagan and Bush Supreme Court justices, however, helped conservative efforts through a series of decisions that limited the scope of key VRA provisions.
In Chapter 4, Rhodes examines the politics of voting rights during the George W. Bush and Obama administrations. Once again, the VRA was renewed by overwhelming majorities in 2006 but “developments in the administrative and judicial arenas overwhelmed the expansive tendencies of the 2006 reauthorization” (p. 130). The Civil Rights Division of the Justice Department was staffed with conservative ideologues and expansive enforcement of the VRA grounded to a halt.
The 2006 VRA reauthorization was a victory for civil rights activists but also carried with it possibilities for future problems. Specifically, in getting Section 4 (formula) and Section 5 (preclearance) passed without adjustment, civil rights groups made these two key sections “increasingly vulnerable to constitutional challenge before a Court that was becoming ever more unsympathetic to robust voting rights enforcement by the federal government” (p. 153). The Court even gave Congress additional [*72] time to make changes to the VRA when it decided NORTHEAST AUSTIN MUNICIPAL UTILITY DISTRICT, NO. 1 V. HOLDER (2009) and refused to strike down the Section 5 preclearance requirement but sent signals that a majority of the Court might vote to do exactly that.
While the Supreme Court never technically declared the Section 5 preclearance requirement unconstitutional, in SHELBY COUNTY V. HOLDER (2013), it did declare the formula established in Section 4 to be unconstitutional. While the decision was shocking to many Americans, Rhodes provides a compelling overarching argument for why the VRA evolved over time the way it did and how to make sense of our voting rights politics.
In short, the voting rights story that Rhodes tells in this book reminds scholars of American politics that the debate over which branch of government best protects the rights of minorities is fundamentally misplaced. Because legislative lawmaking is so visible, traceable, and transparent, it became exceedingly difficult for either major party to endorse limiting voting rights for fear of being seen as racist or at least unsympathetic to minority voters. The retrenchment of the VRA took place in less visible and transparent institutional environments.
While Rhodes provides a compelling account of how and why our national institutions have either extended or retrenched voting rights for susceptible minorities, more explanation of how the Obama Administration’s Department of Justice failed to prioritize voting rights is warranted. Rhodes contends that the “political polarization of staff charged with enforcing the VRA helps explain the otherwise surprisingly lethargic pace of enforcement during Obama’s first term in office” (p. 169) and “to problems that preceded Obama’s presidency” (p. 170), but the reader is left wanting more. For example, the reader might be left wondering whether there is any connection between the Democrats’ strategy on a less than rigorous enforcement of voting rights and the Senate Democrats’ choice not to make appointments to the federal judiciary a strategic priority, at least as compared to the Republicans when they hold power. In other words, it appears that one possible explanation for how the VRA was diluted over time was simply that Republicans wanted to weaken it more than the Democrats wanted to strengthen it.
Not only is BALLOT BLOCKED an important contribution to the Voting Rights Act literature, it also provides a detailed accounting of the motivations and actions of Congress in light of who controls the bureaucracy and the federal courts. In fact, Rhodes provides a “strong confirmation for the provocative claim that elected officials may invite – in fact, empower – unelected political allies to challenge and even countermand legislative choices these same elected officials deplored but were unwilling to block” (p. 185). While the next chapters of the VRA remain unknown, Rhodes provides a rich theoretical framework for understanding what might happen next.
CASES:
BEER V. UNITED STATES, 425 U.S. 130 (1976)
NORTHWEST AUSTIN MUNICIPAL UTILITY DISTRICT, NO. 1 V. HOLDER, 557 U.S. 193 (2009)
SHELBY COUNTY V. HOLDER, 570 U.S. 2 (2013)
© Copyright 2018 by author, Kyle L. Kreider.
