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Ruth Bader Ginsburg Makes Her Mark
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I
f you’re looking for the justice
on the Supreme Court who
mirrors Thurgood Marshall’s
tenure on the bench, it is not Sonia
Sotomayor, the “Wise Latina.”
And it certainly isn’t Clarence
Thomas. It is Ruth Bader Gins-
burg, the second woman to serve
on the nation’s highest court.
This became clear in the Fisher
v. University of Texas affirmative
action case. With Elena Kagan
recusing herself, the court voted 7-
1 to send the case back to court of
appeals for additional review. The
lone dissenter was Ginsburg.
“The University of Texas at
Austin (University) … has steered
clear of a quota system like the one
struck down in Bakke, which
excluded all nonminority candi-
dates from competition for a fixed
number of seats….” she said. “
Justice Powell’s majority opinion
in Bakke “rules out a racial quota
or set-aside, in which race is the
sole fact of eligibility for certain
places in a class.’ And, like so
many educational institutions
across the Nation, the University
has taken care to follow the model
approved by the Court in Grutter v.
Bollinger.”
In sending Fisher back to the 5th
Circuit Court of Appeals in New
Orleans, the 7-1 majority empha-
sized that the lower court should
apply a standard of strict scrutiny,
meaning the University must
prove that it has tried all available
race-neutral approaches before
allowing race to be considered a
factor in admissions.
T HE C URRY
R EPORT
George E.
Curry
Ginsburg wrote in her dissent, “I
have said before and reiterate here
that only an ostrich could regard
the supposedly neutral alternatives
as race unconscious.”
Continuing to address the issue
of race directly, Ginsburg said, “I
have several times explained why
was joined by Stephen G. Breyer,
Sotomayor and Kagan. The con-
servative majority struck down
Section 4 of the Voting Rights Act,
effectively gutting one of the
nation’s most effective tools to
curb discrimination against Black
voters.
“In the Court’s view, the very
success of Section 5 of the Voting
Rights Act demands its dorman-
cy,” Ginsburg said. “Congress was
of another mind. Recognizing that
large progress has been made,
Congress determined, based on a
voluminous record, that the
scourge of discrimination was not
yet extirpated.”
She explained, “The Voting
Under our constitutional structure,
Congress holds the lead rein in
making the right to vote equally real
for all U. S. citizens.
government actors, including state
universities, need not be blind to
the lingering effects of ‘an overtly
discriminatory past,’ the legacy of
‘centuries of law-sanctioned
inequality.’ Among constitutional-
ly permissible options, I remain
convinced, ‘those that candidly
disclose their consideration of race
[are] preferable to those that con-
ceal it.’”
In Shelby County v. Holder, the
Voting Rights Act challenge, Gins-
burg filed a dissenting opinion that
Rights Act of 1965 (VRA) has
worked to combat voting discrimi-
nation where other remedies had
been tried and failed. Particularly
effective is the VRA’s requirement
of federal preclearance for all
changes to voting laws in the
regions of the country with the
most aggravated records of rank
discrimination against minority
voting rights.”
Quoting a 1966 decision in
South Carolina v. Katzenbach,
Ginsburg said, “A century after the
Fourteenth and Fifteenth Amend-
ments guaranteed citizens the right
to vote free of discrimination on
the basis of race, the ‘blight of
racial discrimination in voting’
continued to “infec[t] the electoral
process in parts of our country.”
The Voting Rights Act directly
addressed that infection, Ginsburg
stated.
“Although the VRA wrought
dramatic changes in the realization
of minority voting rights, the Act,
to date, surely has not eliminated
all vestiges of discrimination
against the exercise of the fran-
chise by minority citizens,” she
said.
Ginsburg noted, “After consider-
ing the full legislative record, Con-
gress made the following findings:
The VRA has directly caused sig-
nificant progress in eliminating
first-generation barriers to ballot
access, leading to a marked
increase in minority voter registra-
tion and turnout and the number of
minority elected officials. But
despite this progress, “second gen-
eration barriers constructed to pre-
vent minority voters from fully
participating in the electoral
process” continued to exist, as
well as racially polarized voting in
the covered jurisdictions, which
increased the political vulnerabili-
ty of racial and language minori-
ties in those jurisdictions.”
She noted that Congress, not the
judiciary, should have the final say
on voting matters.
George E. Curry is editor-in-
chief of the NNPA News Service.
tion, published each Wednesday by
IMM Publications Inc.,
415 N. Killingsworth St.,
P.O. Box 5455, Portland, OR 97228.
The Shameful Voting Rights Decision
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T
he Voting Rights Act has
been described as the
“crown jewel” of civil
rights legislation. Its passage was
secured with the courage, grit and
blood of activists throughout the
south, including Fannie Lou
Hamer who endured beatings sim-
ply for trying to register to vote in
Mississippi, Medgar Evers who
was murdered by a White
supremacist, students Andrews
Goodman, James Cheney and
Michael Schwerner, who went
missing at the start of Freedom
Summer 49 years ago, and Black
demonstrators in Selma, Ala., who
were beaten on the Edmund Pettus
Bridge
It’s hard to imagine a piece of
legislation with a greater pedigree
and for which more people have
fought and died than the Voting
Rights Act. And yet in a 5-4 deci-
sion in Shelby County, Alabama
v. Holder, the Supreme Court
struck down a key provision of the
act. Under Section 5 of the Voting
Rights Act, Congress designated
particular jurisdictions in the U.S.
that must obtain permission from a
federal authority (either the
Department of Justice or a federal
court) before they enact voting
changes that might have the effect
of discriminating against minority
voters. The jurisdictions are large-
ly located in the south, although
several boroughs in New York,
parts of Alaska and Arizona are
included as well. The formula
used to designate the jurisdictions
to be covered is set out in Section
4 of the Voting Rights Act. The
Page 4 The Portland Skanner July 10, 2013
NNPA G UEST C OLUMNIST
Sherrilyn A. Ifill
court has declared that Section 4
unconstitutional. This essentially
hollows out the foundation of Sec-
tion 5.
The court’s decision is a shock-
ing usurpation of power from the
Congress, which in 2006 held
hearings over the course of nine
months, heard from almost 100
witnesses and amassed a 15,000-
Charleston County proposed
switching from single-member
district to at-large voting for the
council, and failed to inform any
of the Black members of the
school board of the proposed
change. In 2001 in Kilmichael,
Miss., the all-White town council
decided to simply cancel the
town’s election, once a number of
Blacks decided to run, and data
showed that the jurisdiction had
become majority Black.
In each of these cases, Section 5
prevented the discriminatory plans
It’s hard to imagine a piece of
legislation with a greater pedigree
and for which more people have
fought and died than the Voting
Rights Act
page record. The result of Con-
gress’ searching inquiry was its
determination that voting discrim-
ination continued in the jurisdic-
tions identified in Section 4 of the
Act. In fact, the record was replete
with examples of voting discrimi-
nation in those areas.
For example, Congress found
that city officials in Calera in Shel-
by County, Ala. discriminated in
2008 when they reduced the Black
population in the sole majority
Black council district from 70 per-
cent to 29 percent. Congress
learned that in 2003 once Blacks
won a majority of seats on the
Charleston, S.C. school board,
from reaching fruition. Today, that
protection has been removed, by a
5-member majority on the court
that substituted its judgment for
the record painstakingly amassed
by Congress.
This decision is devastating
for minority voters in cities,
towns, and counties all over this
country. In essence, the voting
protections of 48 years have been
removed with a stroke of the
court’s pen.
Now we have to act. The
NAACP Legal Defense and Edu-
cational Fund has been fighting
voting discrimination for more
than 50 years, and we won’t stop
now. Here’s what you can do:
1)
If you live in the South or
in a jurisdiction formerly covered
by section 5, tell us about any vot-
ing changes happening in your
community. The court struck
down section 4 of the act and, in
effect, removed the power of Sec-
tion 5, but the rest of the Act still
provides protections for minority
voters. The Voting Rights Act is
not dead. But without section 5,
you are our eyes and ears. Go to
our website at www.naacpldf.org
to “Take Action,” email us at
vote@naacpldf.org, or call the
Election Protection hotline shared
by national civil rights groups at 1-
866-OUR-VOTE.
2) Call your representatives in
Congress and tell them that they
must fix the Voting Rights Act.
Tell them they must act now to
restore protections to minority
voters in the south.
3)
Join us for the 50th
anniversary of the March on
Washington on August 24 in
Washington, D.C. We need a mas-
sive mobilization to show America
that we will not go back on voting
rights.
Contact the National
Action Network for more infor-
mation.
We can win this. But to win, we
will need to be in the courts, in the
streets, on the airwaves and in the
halls of Congress. Starting now!
[A version of this article
appeared in The Root, an online
publication of the Washington
Post]
Sherrilyn A. Ifill is the President
& Director-Counsel of the NAACP