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How to Restore and Strengthen the Voting Rights Act

If enacted, the John Lewis Voting Rights Advancement Act would help protect voters from racial discrimination and vote suppression.

Published: January 28, 2021

Enacted in 1965, the Voting Rights Act (VRA) prohib­its racial discrim­in­a­tion in elec­tions, and the land­mark law is considered a signa­ture achieve­ment of the civil rights move­ment. But the Supreme Court’s 2013 ruling in Shelby v. Holder signi­fic­antly weakened the VRA’s protec­tions, clear­ing the path for states to pass a slew of laws that disen­fran­chise voters and discrim­in­ate against voters of color.

One effort to reverse this trend is the John Lewis Voting Rights Advance­ment Act. Named in honor of the late civil rights icon and long­time congress­man, the bill aims to combat racial discrim­in­a­tion in voting by restor­ing and strength­en­ing the protec­tions of the VRA.

How signi­fic­ant was the enact­ment of the VRA and what did it accom­plish?

Myrna Pérez: The VRA is a crown jewel of progress in the United States. It was a tangible repres­ent­a­tion of the prom­ise that we made when we passed the 15th Amend­ment — that Amer­ic­ans would be free from racial discrim­in­a­tion when voting. Until that point, it is indis­put­able that the coun­try had not lived out those prom­ises.

Addi­tion­ally, the VRA was a key achieve­ment of an incred­ible civil rights move­ment led by brave women and men who put a lot on the line to make our coun­try more consist­ent with our ideals and values. Undeni­ably, there had been a lot of resist­ance to an open and fair and access­ible demo­cracy. When the VRA was passed, it gave us both an import­ant commit­ment by the coun­try to be a fairer and more equal place, and the legal teeth to go after vote suppress­ors and to enforce more protec­tions.

The VRA includes a number of import­ant provi­sions, with Section 2 and Section 5 garner­ing the most recent conver­sa­tion. Section 2, which is nation­wide in its cover­age, targets policies and prac­tices that impede the abil­ity of communit­ies of color to elect the candid­ates of their choices. Section 5, also known as preclear­ance, required states and juris­dic­tions with a proven histor­ical record of discrim­in­at­ory voting prac­tices to obtain certi­fic­a­tion before making changes to elec­tion proced­ures that the proposed changes were not discrim­in­at­ory. The preclear­ance set up a pretty simple admin­is­trat­ive regime in which juris­dic­tions could get that certi­fic­a­tion from the Depart­ment of Justice or from a court. For nearly 50 years, this helped protect voters of color in juris­dic­tions with a history of racial discrim­in­a­tion.

What was Shelby v. Holder and how has it affected the VRA?

Pérez: Preclear­ance came to a crash­ing halt with the Supreme Court’s 2013 decision in Shelby County v. Holder, which concluded that Congress was using an outdated formula to decide which states and juris­dic­tions were required to go through the preclear­ance process. And so, we still have preclear­ance on the books — but no state or juris­dic­tion currently has to abide by it. 

The Shelby ruling was a very hard pill to swal­low for several reas­ons. It defied people’s lived exper­i­ences of racial discrim­in­a­tion and voter suppres­sion. It seemed to fly in the face of other Supreme Court decisions that had been very clear that Section 5 was consti­tu­tional and appro­pri­ate. And it ignored Congress’ very broad power and the deep record of discrim­in­a­tion amassed when reau­thor­iz­ing the VRA — most recently in 2006, with almost unan­im­ous support. So, Shelby felt very out of step not only with Amer­ic­ans but also with Congress and the courts.

We have seen the impact of the Shelby decision. We’ve seen more states pass new voting restric­tions. We have seen states use policies and prac­tices to make it harder to vote. We’ve seen states increase voter purges. And the 2020 elec­tion made clear that voter suppres­sion is still live and real, and that there are politi­cians who are determ­ined to manip­u­late the rules of the game so that some people can parti­cip­ate, and some people can’t.

So, we need to have the protec­tions of the VRA in place. Amer­ic­ans deserve an elec­tion system that is free from racial discrim­in­a­tion in voting. And we need a func­tion­ing Section 5. We need a func­tion­ing preclear­ance regime.

How will the John Lewis Voting Rights Advance­ment Act restore and strengthen the protec­tions of the VRA?

Pérez: The John Lewis Voting Rights Advance­ment Act is respons­ive to what the Supreme Court’s Shelby decision said needed to be done. It has a new cover­age formula that looks at more modern issues of discrim­in­a­tion. It has a provi­sion that looks at partic­u­lar prac­tices that have been trouble in the past and sets forth criteria for which those prac­tices are subject to preclear­ance. It has proced­ures for states or juris­dic­tions to show that preclear­ance does not make sense any more for them. It has addi­tional notice and trans­par­ency oppor­tun­it­ies. And it sets forth prac­tices for federal observ­ers, so that voters get support from the federal govern­ment if there are prob­lems on the ground.

How does the Bren­nan Center’s work on demo­cracy reform inter­sect with the push to restore the VRA?

Pérez: The VRA is an extraordin­ar­ily high prior­ity for the Bren­nan Center. We’re very proud of the work we did along­side our part­ners to preserve the VRA pre-Shelby and we are very proud to be with a group of dedic­ated civil rights organ­iz­a­tions work­ing to restore the VRA.

The Shelby effort required a nation­wide amicus and public campaign that so many civil rights organ­iz­a­tions mobil­ized for. But there was also a prede­cessor case — NAMUDNO v. Holder — that teed up Shelby, and many of us were active there as well.

When Shelby came down, we and our part­ners jumped into gear to try and come up with a new proposal that was respons­ive to the Court and its criti­cisms. That effort still contin­ues. We’re still push­ing for the legis­la­tion, trying to do research that demon­strates its import­ance, still work­ing with our part­ners on it, still talk­ing to staffers and members on the Hill about it either in small groups or via testi­mony, and still doing a lot of public educa­tion on the import­ance of the VRA. We’re making the case whenever we can to whoever will listen (and even some who may not) that we need a strong and robust Voting Rights Act.

And, import­antly, these efforts fit together with another Bren­nan Center legis­lat­ive prior­ity — the For the People Act.

The For the People Act (H.R. 1 in the House and S. 1 in the Senate) deals with a lot of nuts-and-bolts elec­tion admin­is­tra­tion issues, while the John Lewis Voting Rights Advance­ment Act deals with the partic­u­lar patho­logy of racial discrim­in­a­tion in voting. The For the People Act is likely to help communit­ies of color, which are typic­ally the hard­est hit by the burdens that get imposed as a result of elec­tion admin­is­tra­tion or voter suppres­sion prob­lems. The John Lewis Voting Rights Advance­ment Act directly targets the issue of racism and discrim­in­a­tion in our elect­oral process. 

It is import­ant for our coun­try’s culture, progress, advance­ment, unity, and heal­ing to recog­nize that we still have racial discrim­in­a­tion in voting and that we are going to say in one very clear and resound­ing voice as a coun­try: We don’t want it. It’s not some­thing we’re going to toler­ate. It’s not some­thing we think is OK.

What’s the path forward for the John Lewis Voting Rights Advance­ment Act?

Pérez: Our coun­try is reel­ing from the attack on our Capitol, from the assault on our elec­tions, and from naked voter suppres­sion and discrim­in­a­tion. This is an import­ant time to remem­ber what can happen if we don’t have guard­rails in place. The John Lewis Voting Rights Advance­ment Act is one obvi­ous way to impose these guard­rails. It has already been passed by the House before. We now have an admin­is­tra­tion that is support­ive of it. We now have a Justice Depart­ment that is headed by people who know how import­ant voting rights are. It’s now up to Amer­ic­ans to tell Congress that we don’t want to wait any longer. We need a strong bill.

It’s also import­ant for the courts to take an account of what happened after Shelby, and just how wrong the implic­a­tion was that there is no longer any racism and discrim­in­a­tion at the ballot box — because we continue to see it. And we know how certain politi­cians will react when their power is threatened, and how low they will stoop to try and main­tain the power that they have rather than respect­ing Amer­ica’s multiracial demo­cracy.

How do these efforts fit into John Lewis’s vision for Amer­ica?

Pérez: John Lewis knew the import­ance of voting rights. He deman­ded it. He fought for it. He spoke out against voter suppres­sion. And an op-ed he wrote shortly before his death, he talked about the import­ance of the voting rights. He is an import­ant reminder of how far this coun­try has come, an import­ant reminder of how far we can go when we limit the influ­ence of discrim­in­a­tion in voting. This bill honors his legacy.