Gutting the Voting Rights Act: Freedom to Discriminate

Jim Crow did not die. It crawled forth from its sepulcher as undead and undying racism. Now clothed in the parchment of legal maneuvers and paradoxes, James Crow, Esquire, stalks our landscape.
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The sign on Highway 19 was destroyed. Without assistance, you can't find the site of the murders. In 2009, a commemorative marker, a green sign with gold text and a magnolia flower at its apex, was placed where Highway 19 connects to Rock Cut Road in Neshoba, Mississippi. The sign read:

On June 21, 1964, James Chaney, Andrew Goodman, and Michael Schwerner were murdered near here by members of the Ku Klux Klan and local law enforcement. They were volunteers for Mississippi Freedom Summer, a drive to register black voters. While investigating the burning of nearby Mount Zion Church, they were arrested and shot. Their bodies were found August 4, 1964. Though no one was indicted for their murder until 2005, the crime sparked national outrage that helped spur passage of the 1964 Civil Rights Act.

But in 2013, the sign was vandalized. There is no trace of it now. The Philadelphia Coalition, whose activism spurred forth the effort to both raise the sign and to bring indictments on former Klansman Edgar Kay Killen, now works to replace the official state marker.

I visited the place of Chaney, Goodman, and Schwerner's murder in early 2013, just a week after the sign mysteriously disappeared over a warm, spring, Mississippi night. I was shown the spot by Mr. Leroy Clemons, a native of nearby Philadelphia, Miss., and member of the Philadelphia Coalition. He took me up Rock Cut Road to the actual spot were they were killed, nearly forty years prior. I stood upon the hallowed ground and asked what was farther down the road. I was told that family and sympathizers of Killen and others with first-hand knowledge of the murders still lived there. "It's not a good idea to go down there," Mr. Clemons said, matter-of-factly. "They don't appreciate people coming around asking questions."

We left.

We drove back north toward Philadelphia. We went past the small diner where Killen and his associates would sit and openly brag about the murders. While being served coffee by black waitresses, they spoke frankly about how they shot Chaney, Goodman, and Schwerner and buried them in an earthen damn. And they said they did it to stop "outside agitation" and the burden of following federal law. They engaged in that public discourse until 2005, when Killen (then 80 years old) was indicted and convicted for their murder.

For many, this is a tale of Jim Crow's death. But it is not only a saga of demise, but of zombie-like resurrection. The year that the state sign was struck down in the night -- a potent marker of the once blood-soaked ground where people fought to bring about a Voting Rights Act -- is the same year that the crown jewel of that same Voting Rights Act (Section Four) was also ripped from its foundation. Jim Crow did not die. It crawled forth from its sepulcher as undead and undying racism. Now clothed in the parchment of legal maneuvers and paradoxes, James Crow, Esquire, stalks our landscape. Whether markers that commemorate sacrifices given or laws ensuring those sacrifices need not be repeated, both have disappeared.

We face a social climate replete with both rampant racial inequality and racial fatigue. Many people simply tire of discussing race because they find it a topic either overblown in import or a rhetorical device used to escape standards and equality -- little more than the proverbial "race card." Thus, many applaud the decision to strike down the core of the Voting Rights Act. But such hand-clapping exposes one hand to support the notion, as Chief Judge Roberts himself wrote, that "... voting discrimination still exists; no one doubts that." While the other hand shows that we should abandon Federal preclearance of legal changes that would result in voting discrimination.

After this inconsistent decision, President Obama expressed disappointment with the ruling and asked Congress to pass legislation "to ensure every American has equal access to the polls." But with the decision, a precedent has been set that makes for a Congressional impasse. This dilemma is summed up no better than in Judge Ginsburg's poignant dissent:

Demand for a record of violations equivalent to the one earlier made would expose Congress to a catch-22. If the statute [The Voting Rights Act] was working, there would be less evidence of discrimination, so opponents might argue that Congress should not be allowed to renew the statute. In contrast, if the statute was not working, there would be plenty of evidence of discrimination, but scant reason to renew a failed regulatory regime. ... Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.

Indeed, between 1982 and 2006, the Department of Justice (DOJ) blocked more than 700 voting changes based on a determination that the changes were discriminatory. For example, in 2001, the mayor and all-white Board of Aldermen of Kilmichael, Mississippi, abruptly canceled the town's election after "an unprecedented number" of African American candidates announced they were running for office. The DOJ stepped in and required an election and the town elected its first black mayor and three black aldermen. In 2003, after African-Americans won a majority of the seats on the school board for the first time in history, Charleston County, South Carolina, proposed an at-large voting mechanism for the board. The DOJ blocked that proposal, finding it an "exact replica" of an earlier voting scheme that violated civil and voting rights. And in 2006, the DOJ stopped Texas' attempt to redraw a congressional district to reduce the strength of Latino voters, which bore "the mark of intentional discrimination that could give rise to an equal protection violation."

Today, those traveling Highway 19 may be oblivious to the site where Chaney, Goodman, and Schwerner were murdered. So also, their right to cast a ballot may be surreptitiously undermined. The lack of both sign and law are perilous to our knowledge and our democracy. And a sign and a law have remarkable similarities. They both direct us toward the better angels of our nature. They both tell us what wrongs were done in the past and counsel us not to repeat them. And they both convey a warning of what will happen if certain actions are repeated.

In Mississippi, and elsewhere around the nation, some claim freedom from the constraints of such reminders. Like Killen and his confederates, many see such legal signposts as "outside agitation" and oppose the burden and constraint of following federal law that was Section Four of the Voting Rights Act. Signs that commemorate the murders of yesteryear are interpreted as unnecessary and divisive finger pointing and are ripped down. Laws that ensure those in power do not discriminate are construed as biased and inequitable. Within our racialized social hierarchy, such a cultural logic reframes those in power as the new victims. Without a clear and viable signal or roadmap to a future free of racial bigotry and inequity, we are now set to drive about aimlessly, bound to our "freedom" to discriminate.

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Dr. Matthew W. Hughey is Associate Professor of Sociology at the University of Connecticut. He is most recently the author of White Bound: Nationalists, Antiracists, and the Shared Meanings of Race. His website is

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