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Analysis

A Chance to Revive the Voting Rights Act

Congress must pass a bill to undo the damage from an infamous 2013 Supreme Court decision.

  • Max Feldman
Last Updated: December 6, 2019
Published: October 23, 2019
let people vote
The Washington Post/Getty

Update: The House passed the Voting Rights Advance­ment Act (H.R. 4) in Decem­ber 2019 and it has since been renamed the John R. Lewis Voting Rights Act.

It’s been more than six years since the Supreme Court took a hatchet to the heart of the Voting Rights Act with its decision in Shelby County v. Holder. On Wednes­day, the House Judi­ciary Commit­tee took a major step toward mend­ing the national wound the Court’s decision caused by send­ing the Voting Rights Advance­ment Act to the House floor. The bill would restore and modern­ize the core protec­tions of the Voting Rights Act.

In Shelby County, the Court struck down the “cover­age formula” that was used to determ­ine which juris­dic­tions had to preclear changes to their voting rules with the federal govern­ment prior to imple­ment­ing them. The point of preclear­ance was to prevent states and local­it­ies from imple­ment­ing discrim­in­at­ory voting rules, and the cover­age formula targeted states with a history of voting discrim­in­a­tion. Over the years, preclear­ance preven­ted count­less discrim­in­at­ory voting rules from going into place. At least 13 laws were blocked by preclear­ance in just the 18 months prior to the Shelby County.

Strik­ing down the cover­age formula effect­ively moth­balled this highly effect­ive system, and the consequences for our demo­cracy were both imme­di­ate and sustained.

The same day the decision came down, states star­ted to imple­ment restrict­ive voting laws that had previ­ously been blocked by preclear­ance. In the years since, previ­ously covered juris­dic­tions have contin­ued to pass new laws that make it more diffi­cult to vote. Moreover, the Bren­nan Center has docu­mented a surge in voter purges since Shelby County in the states previ­ously subject to preclear­ance.

Shelby County’s effects were predict­able and destruct­ive. But, as the Judi­ciary Commit­tee made clear today, we don’t have to accept them forever. In Shelby County, the Court reaf­firmed Congress’s power to pass a new cover­age formula, as long as it is tailored to current condi­tions on the ground.

The Voting Rights Advance­ment Act fits the bill. It includes an updated cover­age formula that sweeps in states with a recent history of voting rights viol­a­tions. It also includes sens­ible notice and trans­par­ency provi­sions with respect to voting changes, and it rein­forces the federal govern­ment’s author­ity to assign observ­ers to polling places in preclear­ance states. In short, it is an appro­pri­ate and effect­ive exer­cise of congres­sional power to combat ongo­ing discrim­in­a­tion in voting.

Some have sugges­ted that other provi­sions of the Voting Rights Act — namely Section 2, which gives the Depart­ment of Justice and private parties wronged by state voting rules the right to sue — are adequate substi­tutes for preclear­ance. That spec­u­la­tion has been contra­dicted by exper­i­ence over the past six-plus years.

Section 2 lawsuits have been success­ful in block­ing or ameli­or­at­ing some of the worst voting laws imple­men­ted in the last decade. But they have signi­fic­ant prob­lems. First off, they’re extremely expens­ive. Second, they put the burden on voters to prove that a new rule is discrim­in­at­ory, rather than requir­ing states with a history of discrim­in­a­tion to show that their new rules won’t, again, discrim­in­ate. Third, these lawsuits are slow-moving, and courts often allow the new rules to go into effect while the litig­a­tion contin­ues, even if they are later shown to be discrim­in­at­ory.

Congress can do better. For decades, the Voting Rights Act and its preclear­ance system have enjoyed wide bipar­tisan support. The law’s 2006 reau­thor­iz­a­tion passed the Senate 98–0 and was signed by Pres­id­ent George W. Bush. The Judi­ciary Commit­tee’s action today was commend­able, and we are hope­ful that the full House will pass the Voting Rights Advance­ment Act in short order.

For nearly 50 years, the Voting Rights Act was a key engine of equal­ity in Amer­ican demo­cracy. It is time to restore it to its full power.