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Analysis

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Court said that the criteria for determ­in­ing which juris­dic­tions engaged in discrim­in­at­ory voting prac­tices was outdated and didn’t reflect the racial progress the coun­try had made.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.