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Analysis

Why the Senate Must Pass the John Lewis Voting Rights Act

The bill would restore crucial protections against racial voter discrimination.

October 6, 2021

The follow­ing is adap­ted from oral testi­mony given Wednes­day before the Senate Judi­ciary Commit­tee.

The Voting Rights Act of 1965 is one of the found­a­tional texts of Amer­ica and a crit­ical bulwark against discrim­in­a­tion in our voting system. Unfor­tu­nately, in the last eight years the Supreme Court dealt two seri­ous blows to the law, which is now simply no longer strong enough to protect Amer­ic­ans from increas­ingly aggress­ive voting discrim­in­a­tion. The John R. Lewis Voting Rights Advance­ment Act would strengthen it.

This bill could­n’t come at a more crit­ical time. The scale of the current assault on voting rights is stag­ger­ing. At least 19 states passed 33 laws this year making it harder to vote, accord­ing to our latest count. Many of these laws target voters of color, exacer­bat­ing persist­ent racial dispar­it­ies in access. Turnout for nonwhite voters is now substan­tially lower than that for white voters — and has been for at least 25 years. Despite record voter turnout in 2020, only 58 percent of nonwhite voters parti­cip­ated, compared to 71 percent of white voters.

Further, we are at the start of a redis­trict­ing cycle that is already show­ing signs of gerry­man­der­ing target­ing communit­ies of color. And an alarm­ing wave of efforts to sabot­age elec­tions compounds these prob­lems.

Only Congress can solve this crisis.

I will focus on one aspect of the John Lewis Voting Rights Act: the geographic preclear­ance formula. The key point: it is new, updated, and laser-focused.

It is neces­sary because even though voting discrim­in­a­tion is now wide­spread, it is much more preval­ent in some places than others. Accord­ing to our count, there were over 120 voting rights viol­a­tions over the past 25 years in the 7 states likely to be covered under this bill, and fewer than 50 in the 39 states that are not close to cover­age. Without preclear­ance, discrim­in­a­tion has been impossible to root out in those places.

States have piled voting restric­tion upon voting restric­tion, passing new ones as soon as old ones are struck down, in what amounts to legal whack-a-mole. For instance, the new Geor­gia and Texas vote suppres­sion laws, the worst in the coun­try, come after years of earlier voting hurdles in those states.

States routinely devise devi­ous new ways to discrim­in­ate in voting — what Pres­id­ent Lyndon John­son called “ingeni­ous discrim­in­a­tion” when first enact­ing the Voting Rights Act. 

The geographic cover­age formula has been updated, and tailored with preci­sion to meet current condi­tions, follow­ing the Supreme Court’s guid­ance. To ensure the formula targets illegal discrim­in­a­tion, it relies on the best evid­ence — estab­lished viol­a­tions of voting discrim­in­a­tion laws. To ensure the formula targets states with a persist­ent pattern of discrim­in­a­tion, it captures only states that meet a high numeric threshold of viol­a­tions over the past 25 years.

This 25-year review period is crit­ical, ensur­ing enough time to identify where discrim­in­a­tion is persist­ent. To ensure it targets places where discrim­in­a­tion is current, the review period is not frozen in time, but rolls forward.

The dura­tion of preclear­ance cover­age is limited to 10 years, so places without recent viol­a­tions auto­mat­ic­ally drop out, and they can also easily bail out before then.

Of course, stronger tools are needed to address discrim­in­a­tion in other places too. That’s why it’s import­ant that the bill strengthens Section 2 of the Voting Rights Act and expands other national protec­tions too.

As Justice Elena Kagan observed in her recent dissent in the recent case Brnovich v. Demo­cratic National Commit­tee, this is “a peril­ous moment for the Nation’s commit­ment to equal citizen­ship,” an “era of voting-rights retrench­ment.”

Safe­guard­ing our demo­cracy and protect­ing voting rights is one of the most sacred respons­ib­il­it­ies this body has. The House has passed this bill. It’s now up to the Senate to act — without delay — to pass both the John Lewis Voting Rights Act and the Free­dom to Vote Act.

The submit­ted writ­ten testi­mony is here.