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Debunking False Claims About the John Lewis Voting Rights Act

The bill would restore much-needed protections against discrimination targeting voters of color.

Published: January 13, 2022

On Thursday, the House passed an omni­bus voting rights bill that included the John R. Lewis Voting Rights Advance­ment Act, an effort to restore and revital­ize the Voting Rights Act of 1965 (VRA). The bill is now before the Senate, where despite bipar­tisan support it faces an uncer­tain future due to the fili­buster.

The VRA was the most success­ful civil rights legis­la­tion in our coun­try’s history until the Supreme Court gutted the law in Shelby County v. Holder in 2013. The Court further weakened the law’s protec­tions against voting discrim­in­a­tion in another case in 2022 in Brnovich v. Demo­cratic National Commit­tee.

Now, we are in the midst of a crisis. The nation faces a wave of voting restric­tions and redis­trict­ing abuses, both of which often target communit­ies of color. We need a full-strength Voting Rights Act to prevent this suppres­sion from happen­ing and root it out quickly where it does.

The John R. Lewis Voting Rights Advance­ment Act would restore the law to full strength, in part by once again requir­ing states with histor­ies of voter discrim­in­a­tion to receive approval from the Depart­ment of Justice or a federal court before enact­ing voting changes. Nonethe­less, Repub­lic­ans in Congress and their allies in the states oppose it. These oppon­ents have now made their case in several congres­sional hear­ings, includ­ing an Octo­ber 6, 2021, hear­ing before the Senate Judi­ciary Commit­tee.

They do not — and cannot — offer reasoned explan­a­tions for why the law’s protec­tions are any less import­ant now than they were in 2006, when it was reau­thor­ized with over­whelm­ing bipar­tisan support in Congress. Instead, they offer a combin­a­tion of misin­form­a­tion and a regur­git­a­tion of the criti­cisms made against the Voting Rights Act in 1965. Their claims are wrong, and many rely on blatantly false state­ments.

MYTH: The bill is a federal takeover of elec­tions

Sen. Ted Cruz (R-TX) called the John Lewis Voting Rights Act “a power grab” designed to let “unelec­ted bureau­crats . . . strike down . . . laws enacted by demo­crat­ic­ally elec­ted legis­latures in the states.” By his telling, “one unelec­ted bureau­crat” can “say to hell with demo­cracy” and strike down laws on a whim.

This argu­ment is incor­rect for three reas­ons. First, the DOJ would play the same role under the John Lewis Voting Rights Act that it played so success­fully for almost five decades under the Voting Rights Act. Criti­ciz­ing the DOJ’s author­ity under the bill is just a revival of an argu­ment made against the original Voting Rights Act.

Back in 1965, segreg­a­tion­ist senator Strom Thur­mond of South Caro­lina simil­arly argued that the bill would cause “despot­ism and tyranny” if passed into law. Not only is it wrong to describe the restor­a­tion of a decades-old prac­tice a “federal takeover,” but it is nonsensical to claim that it under­mines demo­cracy when there is univer­sal agree­ment that the preclear­ance process was tremend­ously success­ful at root­ing out discrim­in­a­tion and improv­ing our demo­cracy. Even Senate Judi­ciary Commit­tee Rank­ing Member Chuck Grass­ley (R-IA) conceded that preclear­ance “worked wonders.”

Second, a state or subdi­vi­sion does not have to involve the DOJ in the preclear­ance process. It can bring its case directly to a federal court. If a state seeks approval from the DOJ and the DOJ denies the request, the state can still bring its case to court.

Third, the DOJ’s review author­ity is limited. It must consider only whether the proposed change to voting rules would result in discrim­in­a­tion against minor­ity voters — a result that would viol­ate the Consti­tu­tion or federal law. The depart­ment cannot simply block laws it does not like. The evid­ence bears this out: the DOJ approved 99.86 percent of submis­sions when preclear­ance was in effect.

MYTH: Preclear­ance is a major burden

Accord­ing to Former Virginia Secret­ary of State Ken Cuccinelli, preclear­ance creates an “extraordin­ary burden” on states and counties because “it covers the smal­lest of trivia.” He asser­ted that even moving a polling place down the hall would trig­ger extens­ive work for a state to clear the DOJ review.

In real­ity, preclear­ance is not a heavy lift for the states. Attor­neys general in several previ­ously covered states, includ­ing Missis­sippi and North Caro­lina, have submit­ted friend-of-the-court briefs explain­ing that the process is “stream­lined to minim­ize the burden,” requires mater­i­als that “are ordin­ar­ily both read­ily access­ible and easy to assemble,” and takes “only a few minutes to prepare.” Submis­sions often received approval on noth­ing more than these simple inform­a­tion sheets. Again, 99.86 percent of proposed changes were precleared in the past.

DOJ staff work cooper­at­ively with local offi­cials, and most submis­sions require only one or two pages of docu­ment­a­tion. Smal­ler changes like the move­ment of a polling place require almost no docu­ment­a­tion and are routinely approved. The John Lewis Voting Rights Act further stream­lines the process in certain instances, provid­ing for exped­ited consid­er­a­tion of changes that respond to exigen­cies such as natural disasters.

MYTH: States will be covered by the law as a result of weak claims or unfoun­ded lawsuits

The bill’s oppon­ents distort how states are brought into cover­age. Todd Rokita, Indi­ana’s secret­ary of state, told the Senate that tempor­ary rulings or cases on appeal count towards cover­age and the bill would “incentiv­ize frivol­ous lawsuits.” Cuccinelli alleged that merely filing lawsuits could bring states into cover­age. Grass­ley attemp­ted to muddy the waters by saying that the bill’s formula for decid­ing who is covered rests on “vague notions.”

Even a curs­ory skim of the Senate bill reveals these claims to be misrep­res­ent­a­tions. The bill clari­fies that only a final outcome (such as a court judg­ment or certain types of consent decrees and settle­ments) that is not over­turned on appeal counts. Only final resol­u­tions that hold that a state’s voting law or prac­tice viol­ated the Consti­tu­tion or federal laws against race discrim­in­a­tion in voting contrib­ute towards cover­age.

Suggest­ing the bill incentiv­izes frivol­ous litig­a­tion is not just spec­u­lat­ive — it is divorced from the real­ity of federal litig­a­tion. First, winning a final judg­ment in federal court is extremely diffi­cult. Judges do not find that a state or local­ity viol­ated the law unless plaintiffs put forth substan­tial evid­ence prov­ing the alleg­a­tions.

Second, given how diffi­cult these cases are to win, there is noth­ing to gain from bring­ing a weak claim. Litig­a­tion is costly and time-consum­ing. Third, defend­ants with strong cases have no incent­ive to settle frivol­ous claims. Their incent­ive is to continue the case to victory, which is a strong deterrent against future chal­lenges.

Finally, court rules such as finan­cial sanc­tions on those who bring frivol­ous cases ensure that prospect­ive litig­ants will care­fully weigh the valid­ity of claims before filing.

Perhaps most import­antly, a state has to rack up at least 10 of these viol­a­tions of voting laws before it is covered. That is far too high a bar for litig­ants to be able to game a state into cover­age.

MYTH: We have elim­in­ated the discrim­in­a­tion under­ly­ing the need for preclear­ance

Oppon­ents of the bill argue that racial discrim­in­a­tion in voting is a thing of the past. Grass­ley claimed that we “recently had record turnout for minor­ity voters” and Rokita stated that “there is no evid­ence that voter suppres­sion is on the rise.” Cuccinelli neatly summed up his view for the commit­tee: “Amer­ica has — thank­fully — left its days of racially suppress­ive voting laws behind.”

Sadly, these views simply do not reflect the real­ity of Amer­ica today, where racism and voter suppres­sion are alive and well. Notwith­stand­ing the Repub­lic­ans’ cherry-picked data, parti­cip­a­tion by nonwhite voters still lags behind that of white voters. While the 2020 elec­tion featured record turnout over­all, only 58.4 percent of nonwhite voters cast ballots compared to 70.9 percent of white voters, a turnout gap of 12.5 percent. This turnout gap has been grow­ing since 2012 — the last pres­id­en­tial elec­tion before Shelby County — when it reached its narrow­est at 8.0 percent. And the gap is grow­ing faster in states likely to be covered by preclear­ance than in the rest of the coun­try.

The bill’s oppon­ents also ignore that laws and prac­tices designed to suppress voters of color remain far too common. There was ample evid­ence of voter suppres­sion and discrim­in­at­ory conduct in the 2020 elec­tion cycle. Geor­gia purged hundreds of thou­sands of dispro­por­tion­ately nonwhite voters from the rolls, North Caro­lina rejec­ted Black voters’ ballots almost twice as often as white voters’ ballots, and Texas allowed only a single drop-off loca­tion for mail ballots per county, mainly impact­ing its large, diverse counties. There were instances of race-based voter intim­id­a­tion, harass­ment of minor­ity elec­tion observ­ers, and threats to elec­tion offi­cials.

Voter suppres­sion remains on the rise today. In 2021 alone, at least 19 states enacted at least 34 laws that make it harder to vote, while at least 13 restrict­ive voting bills have been pre-filed for 2022 legis­lat­ive sessions and no fewer than 152 restrict­ive voting bills will carry over from last year. Four of the restrict­ive laws that passed in 2021 are “monster” voter suppres­sion pack­ages that include dozens voting access roll­backs. Two of these monster laws are in states that would be covered by the version of the John Lewis Voting Rights Act before the Senate (Texas and Geor­gia) and a third is in a state (Flor­ida) that would have been covered by the House version of the bill. (The fourth is in Iowa).

In 1965, states and local­it­ies suppressed the votes of people of color with poll taxes and liter­acy tests. Today, we see insi­di­ous discrim­in­a­tion in new forms. We see it when a state bans 24-hour voting in response to its wide­spread use in a heav­ily nonwhite county. We see it when a state sets limits on drop boxes that make them harder to access after nonwhite voters used them in droves. We see it when a legis­lator says we should focus on the “qual­ity” of voters over the quant­ity.

•  •  •

The critiques offered by oppon­ents of the John Lewis Voting Rights Act are flimsy and trans­par­ent. The subtext comes through loud and clear. The crit­ics haven’t iden­ti­fied flaws in the bill — they oppose the Voting Rights Act, the crown jewel of the civil rights move­ment that trans­formed our demo­cracy.