We are proud to launch Footnote Forum, CUNY Law Review’s new online companion featuring web-exclusive pieces by professors, students, practitioners, and others who aim to share timely legal commentary. Download the inaugural installation, CUNY Law Professor Frank Deale’s Reflections On the History and Future of the Voting Rights Act In the Wake of Shelby County, or keep reading below.

Frank Deale*

I.

At the conclusion of America’s deadliest military conflict, the United States Congress sought to reconstruct a nation torn apart by civil war by enact­ing a program of radical social change designed to eliminate the legal disabilities shouldered by the newly freed African-American male population. Included in the numerous proposals was a series of Amendments to the U.S. Constitution: the 13th Amendment would abolish the institution of slavery; the 14th Amendment would provide equal protection and due process under law to those with former slave status; and the 15th Amendment would enable them to protect these rights via a right to vote, unencumbered by “race” or “color” discrimination. The Congress was empowered to enforce this provi­sion with appropriate legislation.

Less than 50 years after the enactment of these historic provisions, a substan­tial number of African-Americans went to polling stations in the state of Alabama, the home of Shelby County, seeking to register as voters for an upcoming election. In flagrant violation of the language in the Constitution, they were turned away because of their race. Undaunted, over 5,000 of them joined a civil case to enforce the Constitution, which was heard by the Su­preme Court of the United States. The Court correctly understood the gist of the plaintiffs’ complaint, which was that “the great mass of the white popula­tion intends to keep the blacks from voting.”[1] Yet, notwithstanding the stark nature of the facts, the Court denied relief, concluding that:

Continue reading →