Congress passed the Voting Rights Act (VRA) in 1965 to protect against race discrimination in voting. The VRA was later amended to protect against discrimination against language minorities as well. This momentous piece of legislation delivers on the promise of the 14th and 15th Amendments that every citizen is entitled to an equal opportunity to participate in our democracy.
But that right is under threat, particularly because of two Supreme Court decisions. Section 5 of the VRA requires states and localities with a history of discrimination to obtain approval from the Department of Justice or a court before changing voting rules (a process known as “preclearance”).
In 2013, the Supreme Court held in Shelby County v. Holder that the formula for determining which jurisdictions were subject to preclearance was unconstitutional because it was outdated, eviscerating a key provision of the VRA. This decision ushered in a wave of efforts in states previously covered under Section 5 to restrict voting rights, leaving to Congress the responsibility of drafting an updated coverage formula to restore the force of Section 5.
In July 2021, the Supreme Court made it more difficult to challenge laws that restrict voting rights under Section 2 of the VRA. In Brnovich v. Democratic National Committee, the Court ruled that two Arizona voting laws did not burden voters of color enough to constitute a violation of VRA. In so doing, the Court largely ignored the longstanding considerations that courts have relied on to determine whether discrimination exists under Section 2, which allows voters to sue to block discriminatory voting laws. Instead, the Court created new “guideposts” to adjudicate Section 2 claims, such as whether a state provides more opportunities to vote now than the state did when Section 2 was last amended in 1982.
These Supreme Court decisions, along with the wave of restrictive voting legislation that passed this year, underscores the urgent need for Congress to pass the John R. Lewis Voting Rights Advancement Act. The bill, named for the late civil rights champion and congressman, was passed by the House in August and is now before the Senate.
The John Lewis Voting Rights Act would modernize and revitalize the VRA by strengthening legal protections against discriminatory voting policies. First, the bill restores what the Supreme Court struck down in Shelby County by creating a new formula to determine which jurisdictions with a history of voting discrimination are subject to preclearance, and it adds practice-based coverage, making certain types of discriminatory voting changes subject to preclearance. The bill also restores Section 2 in the wake of Brnovich to ensure that voters have the full ability to challenge voting discrimination in court.
To learn more about the Voting Rights Advancement Act, check out the following resources:
Analyses, reports, and explainers from the Brennan Center outlining the need to restore the Voting Rights Act
Congressional hearings and testimony in support of the Voting Rights Advancement Act