States' Rights Resurgent: The Attack on the Voting Rights Act

On June 25, 2013 Chief Justice John Roberts invalidated the application of Section 5 of the federal Voting Rights Act in a five to four opinion of the US Supreme Court. In a case out of Shelby County, Alabama, the Court held that the criteria adopted in 1965 by which jurisdictions were identified for coverage under the pre-clearance provision of the Act were based on outdated "decades-old data and eradicated practices" and constituted an irrational violation of the Constitution.¹Shelby County v. Holder, 570 US ____, 3, 18 (2013).

Voting Rights, June 30, 2013. Cartoon by Mike Luckovich. Republished by permission of Mike Luckovich.

The opinion ignored the fact that Congress actually developed thousands of pages of testimony, data, and information providing evidence of substantial new voting rights problems for people of color in the states covered by Section 5. Why did the Court conclude it was irrational for Congress to continue coverage when the record clearly showed otherwise? The answer is found in the most troubling part of Roberts' opinion, largely ignored outside of legal circles. In essence, the Court ruled that this voting rights case was primarily a competition between the constitutional right of citizens to vote and the "constitutional equality of the States"—and held that states' rights won.²Coyle v. Smith, 221 US 559, 580 (1911), quoted in Shelby, 570 US at 10–11. As Roberts wrote: "Not only do States retain sovereignty under the Constitution, there is also a 'fundamental principle of equal sovereignty' among the States" that the Voting Rights Act failed to observe.³Shelby, 570 US at 10. This "fundamental principle of equal sovereignty" was articulated by the Supreme Court in Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 US 193, 203 (2009), emphasis added by Roberts in the Shelby County v. Holder decision.

In the US Constitution, the words "state sovereignty" invoke the notion of the United States government as a federal system of fifty state governments, each possessing powers that the national government cannot abridge without a compelling reason. This constitutional concept arises from the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The claims of state sovereignty have a long history in the US South, originating largely around questions regarding black people and their rights as persons, especially their right to cast an equal vote to elect representative government. In the constitutional debates of 1787 when the founding convention considered what to do about slavery in their corner of the new world, most southern delegates claimed their states should have a sovereign right to govern their internal affairs without interference from a national government­—largely to protect slavery. The primary compromise from these debates led to the adoption of a provision in the Constitution that prevented the federal government from interfering with slavery where it existed and by allowing states to treat enslaved blacks as non-persons or chattel property—while counting them as three-fifths of a person for purposes of apportioning voting power among the states in electing the nation's president and the House of Representatives.

During much of the first half of the nineteenth century, most southern states followed the leadership of South Carolina's John C. Calhoun, who defended states' rights—or state sovereignty—and slavery "in the slaveholding States . . . instead of an evil, a good—a positive good."⁴John C. Calhoun, "Slavery a Positive Good," TeachingAmericanHistory.org, February 6, 1837, accessed, August 22, 2013, http://teachingamericanhistory.org/library/document/slavery-a-positive-good/.

Calhoun developed a theory of state sovereignty called "nullification" as the South faced mounting opposition to slavery every time Congress considered acquiring new territory or adopting a new state, which had to be declared "free" or "slave." Calhoun held that any state had the sovereign power to nullify any law that the federal government passed. This paramount power of southern states would allow the South to remain a separate section of the nation with slavery.

Much of the Lincoln-Douglas debates developed around Stephen Douglas' theory of "popular sovereignty"—a doctrine that would have affirmed Calhoun's notion of states' rights and permitted states to decide for themselves about the legality of slavery.

As Lincoln became president, South Carolina declared that his election foretold that "the equal rights of the States will be lost. The slaveholding States will no longer have the power of self-government, or self-protection, and the Federal Government will have become their enemy."⁵"Confederate States of America—Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union," Avalon Project of Yale Law School, accessed August 22, 2013, http://avalon.law.yale.edu/19th_century/csa_scarsec.asp. South Carolina proclaimed its secession and less than four months later fired on Fort Sumter.

The Civil War, the nation's bloodiest conflict, ensued in the South as a "War Between the States"—language that sustained the claim that southern states were not rebelling against the nation but were defending their sovereign states' rights.

The Thirteenth, Fourteenth, and Fifteenth Amendments adopted after the Civil War declared the abolition of slavery, equal rights and privileges of all persons born or naturalized throughout the United States, due process and equal protection of the laws, House apportionment based on "the whole number of persons," and citizens' right to vote without regard to "race, color, or previous condition of servitude."

Compromise, Indeed!, Harper's Weekly, January 27, 1877, 64. Cartoon by Thomas Nast.

These national principles were upended in barely more than a decade with the presidential election of 1876 and the Tilden-Hayes Compromise, a political agreement that gave Republican Rutherford B. Hayes the presidency in return for withdrawing federal enforcement of the Civil War Amendments in the South, including the new constitutional right to vote regardless of race. There was no proclamation about the restoration of "state sovereignty" in the Congress, but the compromise restored the principle of states' rights as the political framework by which the states of the former Confederacy would handle the legal, social, and political status of African Americans.

For almost six decades, the Supreme Court largely followed the basic terms of this political compromise honoring the state sovereignty of each state of the former slave-holding section. As the Court stated in striking down some of the first federal attempts to enforce the Civil War Amendments to protect the rights of former slaves and their descendants: "Sovereignty, for this purpose, rests alone with the States."⁶ United States v. Cruikshank, 92 US 542, 553 (1876).

In its deference to states' rights over the new national rights of individuals, the Supreme Court acted as if it saw no evil. For example, in 1898 it upheld Mississippi's new state constitutional provisions that resulted in disfranchising almost all African Americans by concluding that the provisions "do not on their face discriminate between the races, and it has not been shown that their actual administration was evil, only that evil was possible under them."⁷Williams v. Mississippi, 170 US 213, 225 (1898).

White political leaders in the South resurrected the theories of state sovereignty that Calhoun and Douglas advanced before the Civil War as the constitutional ground for maintaining racial segregation and disfranchisement built in the era of Jim Crow. Their arguments failed to stop the Court from outlawing the all-white primaries and from issuing Brown v. Board of Education, which declared that segregation—separate and unequal—was unconstitutional.

In the era of massive white resistance to court-ordered desegregation, white political officials justified their actions on the basis of states' rights and state sovereignty. In response to Brown, the vast majority of the South's congressional delegation signed a "Southern Manifesto" in 1956 condemning the Court's opinion and declaring:

We regard the decision of the Supreme Court in the school cases as clear abuse of judicial power. It climaxes a trend in the Federal judiciary undertaking . . . to encroach upon the reserved rights of the states.

. . . we have full faith that a majority of the American people believe in the dual system of government . . . and will in time demand that the reserved rights of the states . . . be made secure against judicial usurpation.⁸"Southern Manifesto on Integration," Congressional Record, 84th Congress Second Session, Vol. 102, part 4 (Washington, DC: Governmental Printing Office, 1956), 4459–4460, http://www.pbs.org/wnet/supremecourt/rights/sources_document2.html.

Six years later, after making a name for himself as a local state court judge who refused to follow the mandate of a federal court to permit black citizens to register to vote, Alabama's new governor declared: "Today I have stood, where once Jefferson Davis stood, and took an oath to my people. It is very appropriate then that from this Cradle of the Confederacy, this very Heart of the Great Anglo-Saxon Southland. . . . I draw the line in the dust and toss the gauntlet before the feet of tyranny and I say segregation today, segregation tomorrow, segregation forever."⁹George Wallace, "Inaugural address of Governor George Wallace, which was delivered at the Capitol in Montgomery, Alabama," January 14, 1963, Alabama Department of Archives and History Digital Collections, http://digital.archives.alabama.gov/cdm/singleitem/collection/voices/id/2952/rec/.

George Wallace justified his segregationist stance by invoking states' rights:

This nation was never meant to be a unit of one . . . but if we amalgamate into the one unit as advocated by the communist philosophers. . . . We become, therefore, a mongrel unit of one under a single all powerful government."¹⁰Ibid.

Within a few weeks of his inauguration, Governor Wallace created and funded the Alabama State Sovereignty Commission, which became a major agency in fighting civil rights activities, spying on activists and advocates, distributing racist propaganda, making grants to the Citizens Councils of America (a private group that opposed desegregation), and advising voter registrars on how to block or frustrate black voting after the passage of the Voting Rights Act in 1965.

Alabama's spy commission was patterned after the Mississippi State Sovereignty Commission, established by the legislature in 1956, two years after Brown. Its objective was to "do and perform any and all acts deemed necessary and proper to protect the sovereignty of the state of Mississippi, and her sister states."¹¹"Sovereignty Commission Online," Mississippi Department of Archives and History. http://www.mdah.ms.gov/arrec/digital_archives/sovcom/ As in Alabama, Mississippi's Sovereignty Commission operated as a secret police force that aided and used the White Citizens' Council and others to spy on activists, oppose passage of the 1964 Civil Rights Act and the 1965 Voting Rights Act, help local registrars block blacks from registering, and build a publicity campaign to discredit civil rights activists as "subversives."

After the federal voting law took effect, southern states challenged it frequently before the Supreme Court primarily on the constitutional claims of state sovereignty under the Tenth and Eleventh Amendments. South Carolina and other state and local governments, especially those under the coverage of Section 5, claimed that the federal law encroached "on an area reserved to the States by the Constitution" and violated a "principle of the equality of States" in the US Constitution. For nearly fifty years, the Supreme Court rejected these arguments because the "principles of federalism that might otherwise be an obstacle to congressional authority are necessarily overridden by the power to enforce the Civil War Amendments."¹²City of Rome v. United States, 446 US 156, 178, 179 (1980).

Now, under Chief Justice Roberts' leadership, the Court has reversed the direction of its constitutional interpretation by holding that the equal rights of states prevail over the equal right of citizens in the field of voting. The decision jeopardizes the fundamental notion that Congress has powerful means to assure individual rights cannot be abridged anywhere by federal, state, or local governments.

Several southern state attorneys general welcomed the Court's Shelby County decision as a landmark for states' rights. "For nearly fifty years, Sections 4 and 5 have imposed an extraordinary intrusion into state sovereignty in certain states, including South Carolina," observed that state's chief legal officer as he assured everyone that he would protect all citizens' voting rights.¹³"Attorney General Alan Wilson Issues statement on Shelby County v. Holder," Alan Wilson: South Carolina Attorney General, accessed August 22, 2013, http://www.scag.gov/archives/9396. In Texas, where Governor Rick Perry claims the right of his state to secede, the attorney general has moved quickly to try to prevent civil rights leaders from challenging a state redistricting plan by using another section of the Voting Rights Act. His spokesperson stated: "In a desperate effort, partisan groups are once again attempting to cede the state's sovereignty."¹⁴Gary Martin, "Redistricting Debate Hears New Argument," My SA, July 9, 2013, accessed August 22, 2013, http://www.mysanantonio.com/news/local/article/Redistricting-debate-hears-new-argument-4655908.php. Alabama Attorney General Luther Strange called the decision "an important victory for the fundamental constitutional principle that all states enjoy equal sovereignty."¹⁵"AG Strange Praises the US Supreme Court for Declaring Section 4 of the Voting Rights Act Unconstitutional," State of Alabama Office of the Attorney General, June 25, 2013, accessed August 22, 2013, http://www.ago.state.al.us/News-340.

Tea Party tax day protest, St. Paul, Minnesota, April 15, 2010. Photograph by Fibonacci Blue. Courtesy of Fibonacci Blue.

Outside of courtrooms state sovereignty has been gaining new momentum in recent years as a part of the battle cry of the Tea Party whose leaders have condemned a wide range of national concerns, including health care and education standards, on the ground that they violate the rightful sovereignty of the states.

There is also a movement to amend the federal constitution to advance a new state sovereignty. In 2010, the speaker of the Virginia House of Delegates announced an effort to promote a "Repeal Amendment" to the US Constitution to provide states with the collective power to nullify any act of Congress with which two-thirds of the states disagreed. It has been endorsed as a way to begin to restore states' rights by Virginia's attorney general (who is seeking to become governor in 2013), governor, and lieutenant governor; South Carolina's house speaker; Texas' attorney general and speaker; and Florida's attorney general and president of the state senate. The Florida legislature has become the first state to pass a resolution for a process by which states can amend the federal Constitution.¹⁶Elizabeth Price Foley, "Sovereignty, Rebalanced: The Tea Party & Constitutional Amendments," Tennessee Law Review 78 (2011): 751–764, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1904656.

The defenders of today's movement for state sovereignty claim that "modern Americans who decry the erosion of federalism are not pining for a return to segregation or some pre-Civil War version of states' rights."¹⁷Ibid., 752. But, the Supreme Court's decision to allow states' rights to trump black citizens' rights in voting is a profoundly disturbing setback. In the wake of Shelby County, many of the southern states' white political leaders have loudly rejoiced, and some have announced renewed plans to use this new-found state sovereignty to further restrict voter registration and redistricting.

Moving quickly, the U.S Department of Justice has begun challenging state attempts to suppress minority voting. Seeking to overturn a redistricting plan and to challenge a photo identification law, attorney general Eric Holder signed on to two lawsuits against Texas in August. "This represents the department’s latest action to protect voting rights," said Holder, "but it will not be our last." Texas Republicans immediately raised the cry of "states' rights." "A politicized Justice Department," complained state senator John Cornyn, was "bent on inserting itself into the sovereign affairs of Texas. . . . We deserve the freedom to make our own laws, and we deserve not to be insulted by a Justice Department committed to scoring cheap political points."¹⁸Charlie Savage, "US Is Suing in Texas Cases Over Voting by Minorities," The New York Times, August 22, 2013, http://www.nytimes.com/2013/08/23/us/politics/justice-dept-moves-to-protect-minority-voters-in-texas.html.

In the future, southern states will no longer have the burden of proof in showing that voting changes do not have a racially discriminatory effect. By invoking the constitutional principle of state sovereignty, Chief Justice Roberts' opinion maintains a long, consistent pattern in which state sovereignty has primarily been used in government and politics in the South to permit and justify belittling the humanity, citizenship, or constitutional rights of black people. Still unfulfilled, the Civil War Amendments offer democratic ideals that hold an enduring promise to make our future better than our past, especially in an increasingly diverse United States. 

About the Author

A native of Winston County, Alabama, Steve Suitts is an adjunct faculty member of the Graduate Institute of the Liberal Arts at Emory University and vice president of the Southern Education Foundation.

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