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The Fight for Voting Rights Moves to the Senate

The John Lewis Voting Rights Act would shield voters from racial discrimination at the ballot box.

October 5, 2021

On Tues­day, Sens. Patrick Leahy (D-VT) and Dick Durbin (D-IL) intro­duced the John R. Lewis Voting Rights Advance­ment Act. In August, the House passed its version of this crit­ical bill to shield Amer­ican voters from racial discrim­in­a­tion at the ballot box. The goal of the legis­la­tion is to restore the Voting Rights Act of 1965 to its full protect­ive glory. Right now, that land­mark law’s effect­ive­ness has been under­mined by two Supreme Court decisions.

In 2013, the Court gutted the law’s most power­ful provi­sion. Under Section 5, juris­dic­tions with a history of racial discrim­in­a­tion in voting had to get federal approval, or preclear­ance, before imple­ment­ing changes to their voting policies. In Shelby County v. Holder, a major­ity of the Court said that the criteria for determ­in­ing which juris­dic­tions engaged in discrim­in­at­ory voting prac­tices was outdated and didn’t reflect the racial progress the coun­try had made. Imme­di­ately after­ward, juris­dic­tions once covered under preclear­ance star­ted to aggress­ively imple­ment new restrict­ive voting policies.

Then this summer, the Court also made it harder to chal­lenge discrim­in­at­ory voting laws under Section 2 of the Voting Rights Act. The major­ity did this by setting aside decades of preced­ent. Rather than examin­ing the way that centur­ies of discrim­in­a­tion inter­act with a partic­u­lar voting policy to produce discrim­in­a­tion at the ballot box (as courts have done for decades), the Supreme Court instead created new “guide­posts” to determ­ine if discrim­in­a­tion was seri­ous enough for judges to get involved. These guide­posts are skewed in a way that makes it much harder for courts to root out voting discrim­in­a­tion, chalk­ing up real burdens to “mere incon­veni­ences.”

Despite these disastrous rulings, the Court in both instances said Congress could update and clarify Section 5 and Section 2 to root out race discrim­in­a­tion in voting. That’s exactly what the John Lewis Voting Rights Act does, and it could­n’t come at a more pivotal time.

This week, we updated our list of states that have enacted voting restric­tions over the last year. At least 19 states have passed 33 laws in 2021 that make it harder to vote. Before Shelby, some of these states — Geor­gia and Texas, for example — had to clear their changes with the Justice Depart­ment or a federal judge before putting them into prac­tice. These laws are on top of laws enacted since the Shelby decision that create layers upon layers of voting restric­tions, many of which prob­ably would­n’t have survived preclear­ance. These barri­ers once again add up to what Pres­id­ent Lyndon John­son described as “ingeni­ous discrim­in­a­tion” when he called on Congress to pass the Voting Rights Act of 1965.

The John Lewis Voting Rights Act is craf­ted to put an end to this nonsense. First, the new preclear­ance formula only targets juris­dic­tions with a current, persist­ent, and pervas­ive history of racial discrim­in­a­tion in voting proven by repeated viol­a­tions of federal law. Second, by strength­en­ing Section 2, the bill restores the abil­ity of voters to chal­lenge racially discrim­in­at­ory voting prac­tices in juris­dic­tions not covered by the new preclear­ance formula. 

When the Shelby ruling came down, the late great Justice Ruth Bader Gins­burg famously wrote in dissent: “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.” With the John Lewis Voting Rights Act, Congress has writ­ten legis­la­tion that gives the courts an improved tool to help protect voters of color from the deluge of voter suppres­sion laws that are now common­place across the coun­try.

The Senate now must do what the House already has — pass the bill. And once it clears Congress, Pres­id­ent Biden should sign it imme­di­ately. Other­wise, our elec­tion rules will once again make a mock­ery of our demo­cracy’s most sacred prom­ise: one person, one vote.