Protecting Voters’ Rights at the Polls

August 28, 2015

As chief of the Civil Rights Bureau at the New York Attorney General’s Office, Columbia Law School lecturer and alumna Kristen M. Clarke ’00 wields a host of state and federal laws to investigate and prosecute discrimination. Foremost among them: The landmark Voting Rights Act (VRA) of 1965, a piece of legislation signed into law by President Lyndon B. Johnson to protect black voters at the polls.

Today, the law is still a key tool in efforts to ensure every U.S. citizen has full access to the political process despite recent efforts and judicial decisions paring back its reach. Clarke defended the law at the district court level in Shelby County v. Holder, the case in which the U.S. Supreme Court eventually struck down a key provision of the law.

The VRA will play prominently in a new course Clarke will co-teach at Columbia Law School this fall with Professor Kendall Thomas, Civil Rights Lawyering in the Modern Era: Theory and Practice (Clarke took a course on critical race theory with Thomas during her third year). The class is one of several the Law School offers addressing racial, economic, and social justice.

As the nation reflects on the 50th anniversary of Johnson’s signing of the Voting Rights Act, Clarke took time to discuss the law’s significance, the role it will play in her class, and the importance of the country’s continuing civil rights movement in a special Q&A for the Columbia Law School Community.

Q How did you and Professor Thomas come up with the idea for the course?

This is an incredibly important moment for civil rights lawyers and advocates. The U.S. Supreme Court has heard a number of challenges to some of our nation's bedrock civil rights laws including the Fair Housing Act and the Voting Rights Act, and the court will soon revisit the issue of race-conscious admissions policies for colleges and universities. We are seeing a new spotlight on criminal justice issues and controversies.  And, evidence makes clear that despite progress, we are still contending with significant discrimination and inequality.  This course will provide a comprehensive overview of the some of the challenges that civil rights litigators face today in the current environment.

Q How effective has the VRA been in its 50 years?

The Voting Rights Act is one of our nation's most effective and powerful federal civil rights laws.  The act has played a central role in our democratic process.  It has served as a critical tool in the effort to combat discrimination and lift obstacles that stand in the way of those seeking access to the ballot box.  No law has done more to transform and elevate our democracy and promote civic participation.

Q What impact has the Shelby County decision had since it was handed down in 2013?

Shelby County vs. Holder is an important case to analyze and understand.  The court issued a ruling that essentially gutted one of the core provisions of the Voting Rights Act—the Section 5 preclearance provision.  This provision required that certain jurisdictions with very long and egregious histories of discrimination seek preapproval of any change impacting voting before implementing that new change.  This provision of the act has literally blocked hundreds of unconstitutional and discriminatory voting changes that would have otherwise gone into effect but for this important preapproval mechanism.  When I argued the case, the judge rejected the constitutional challenge, recognizing that Congress has broad powers under the 14th and 15th Amendments and appropriately invoked those powers when it chose to renew the preclearance provision following extensive hearings on the issue in 2006.  The Supreme Court, however, took a different reading of the issue and, for the first time in 50 years, we are now without the strong medicine that has long been provided by this central provision of the act.  We need to be wary of efforts to make access to the ballot box more difficult and think carefully about what this decision means for American democracy.

Q How do you plan to address the VRA in your class?

We will spend an entire week reviewing the Shelby decision and looking closely at efforts around the country to change the rules concerning participation in the voting process.  We are seeing states adopt mandatory, government-issued photo identification requirements for voters, efforts to reduce early voting hours, and other changes that appear aimed at making access to the franchise more difficult.  That said, rates of voter participation and turnout vis-a-vis other countries around the world remain very low in the United States.  What do these changes mean and what implications do they have for our political process in the U.S.?  What obstacles do voting rights lawyers and advocates face in wrestling with these restrictions in the present day?  How complex is it to build a case challenging a voting change that may have a discriminatory and unlawful effect on protected minority groups?  These are the kinds of questions that we will look at closely during the course.

Q What do you hope students will take away from the course?

I hope that students will appreciate the very central role that civil rights lawyers and litigators play in our world today.  Civil rights lawyers are very focused on upholding the Constitution and confronting new challenges and threats that we see today in the face of ongoing discrimination and inequality.  This work is not about protecting particular groups; rather, this work is about elevating the principles that underlie American democracy.  That said, there are challenges that civil rights lawyers face today that they may not have faced in the 60s.  This course will shine a spotlight on the current controversies and complexities that are tied with civil rights lawyering and provide a setting for students to think carefully and deeply about the value of civil rights enforcement today.