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How the John Lewis Voting Rights Advancement Act Targets Discrimination

The Brennan Center testified before the House about the congressional action needed to restore the Voting Rights Act to full strength.

August 16, 2021
Michael B. Thomas/Getty

The follow­ing is adap­ted from oral testi­mony given Monday before the House Judi­ciary Commit­tee’s Subcom­mit­tee on the Consti­tu­tion, Civil Rights, and Civil Liber­ties at a hear­ing about poten­tial legis­lat­ive reforms to the Voting Rights Act of 1965.

In its 2013 ruling in Shelby County v. Holder, the Supreme Court gutted the most power­ful and success­ful provi­sion of the Voting Rights Act of 1965. Under the law, juris­dic­tions with a history of discrim­in­a­tion could not change their voting proced­ures without first secur­ing “preclear­ance” from the Depart­ment of Justice or a federal district court in Wash­ing­ton to ensure that the proposed change would not harm minor­ity voters. In Shelby County, the Court found that the formula Congress used to determ­ine which states should be covered by preclear­ance was outdated.

But the Court did not write off preclear­ance alto­gether, instead invit­ing Congress to craft an updated formula — one “groun­ded in current condi­tions” and “needs,” and target­ing juris­dic­tions where discrim­in­a­tion is suffi­ciently pervas­ive and persist­ent to justify preclear­ance. That is precisely what this Congress has done — and is now sharpen­ing — in the John Lewis Voting Rights Advance­ment Act (VRAA).

Racial discrim­in­a­tion in voting remains extens­ive and persist­ent. These are the “extraordin­ary condi­tions,” in the Court’s terms, that make preclear­ance both neces­sary and consti­tu­tion­ally justi­fied.

Amid the reams of evid­ence making this point, it is worth high­light­ing that turnout among nonwhite voters is substan­tially lower than turnout among white voters — and has been for at least 25 years. In the 2020 elec­tion, despite record over­all turnout, roughly 71 percent of white voters cast ballots, compared to only 58 percent of nonwhite voters. The gap between them is even starker in states that are likely to be covered under the VRAA. And in virtu­ally every one of those states, the gap has grown dramat­ic­ally since the Shelby County ruling.

Targeted geographic cover­age remains a neces­sary and appro­pri­ate way to root out intract­able discrim­in­a­tion in voting. Though discrim­in­a­tion is wide­spread, it is much more preval­ent and tena­cious in some places than others.

The modern­ized geographic cover­age formula Congress is contem­plat­ing for the VRAA iden­ti­fies those places where voting discrim­in­a­tion is recent, wide­spread, and persist­ent. As such, it is sens­ible, fair, and consti­tu­tional, respons­ive to the Court’s concerns in Shelby County.

The formula relies on docu­mented viol­a­tions of laws prohib­it­ing racial discrim­in­a­tion in voting. It captures only those states that meet a high numeric threshold of viol­a­tions over time — 10 viol­a­tions if at least 1 of them is statewide, or 15 total viol­a­tions, over the prior 25 years. And it ensures that preclear­ance will be limited to states where discrim­in­a­tion is current; juris­dic­tions without recent viol­a­tions will no longer be subjec­ted to the require­ment.

As Justice Elena Kagan recently observed in her dissent from a recent ruling that further rolled back the protec­tions of the Voting Rights Act, this is “a peril­ous moment for the Nation’s commit­ment to equal citizen­ship” and an “era of voting-rights retrench­ment.”

The scale of voting discrim­in­a­tion is enorm­ous, and it will become more so as states and local­it­ies across the coun­try begin the process of redis­trict­ing. It is a prob­lem that only Congress can solve — by passing the John Lewis Voting Rights Advance­ment Act and the For the People Act.

The submit­ted writ­ten testi­mony is here.