The 2016 election was the first presidential election in 50 years without the full protection of the Voting Rights Act (VRA) to combat racial discrimination in voting. Widely regarded as the most effective civil rights law in American history, the VRA prohibits a range of discriminatory voting practices and lets citizens and the federal government challenge discriminatory changes to voting laws and practices.
In June 2013, however, the Supreme Court gutted the law’s core provision in its 5-4 decision in Shelby County v. Holder. Under Section 5 of the Act, states and localities with a history of voting discrimination had to get permission in advance — or “preclearance” — from the Justice Department or a federal court in Washington, D.C. before making any changes affecting voting processes. To do so, they had to prove that their proposed changes were not racially discriminatory. This process proved remarkably effective at deterring voting discrimination. Between 1998 and 2013, 86 proposed election changes were blocked. Hundreds more were withdrawn after Justice Department inquiry or pushback. And still more were never put forward because policymakers knew they wouldn’t pass muster.
In Shelby County, the Supreme Court neutered preclearance, ruling that the law used an out-of-date formula to determine which states were covered. At the argument, Justice Antonin Scalia said that the law was merely a “racial entitlement.” Chief Justice John Roberts, the opinion’s author, said that the coverage formula made sense at the time it was adopted, but “[n]early 50 years later, things have changed dramatically.” But, in a stern dissent, Justice Ruth Bader Ginsburg wrote, “[t]hrowing 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.”
Who was right? Just hours after the Supreme Court issued its ruling, Texas announced that it would implement the country’s strictest voter ID law, which had previously been denied preclearance and hadn’t been put into effect. (This notorious law allowed people to use a concealed carry gun permit as voter ID but barred the use of a University of Texas ID.) A federal court later blocked the law as discriminatory — but not before it marred multiple elections.
Other states responded similarly to the Shelby County ruling with laws restricting voting. Federal courts have repeatedly found that these new laws made voting harder for minorities — some purposefully so. One federal appeals court ruled that a North Carolina law — a broad set of voting restrictions unveiled shortly after Shelby County — “target[ed] African Americans with almost surgical precision.” These lawsuits were brought under a remaining provision of the Voting Rights Act, Section 2, which allows challenges to voting discrimination. But lawsuits are no substitute for preclearance, which effectively prevented discriminatory voting changes from taking effect in the first place. Section 2 lawsuits are lengthy, expensive, and often don’t yield results until after an election (or several) is over. And they are rarely used for the most pervasive consequence of the weakening of the law — local decisions that make it harder for people to vote. Since Shelby County, officials have closed hundreds of polling places in counties previously covered by the VRA.
Congress and the president should enact legislation to restore the full protections of the Voting Rights Act. The Voting Rights Advancement Act, introduced this session by Rep. Terri Sewell (D-Ala.) (H.R. 2978) and Sen. Patrick Leahy (D-Vt.) (S. 1419), would require preclearance for states that have a record of voting rights violations in the preceding 25 years.46 Another bipartisan bill, the Voting Rights Amendment Act (H.R. 3239), introduced by Rep. James Sensenbrenner (R-Wis.), would also restore key protections.
States should also supplement the protections afforded by the federal government. California’s Voting Rights Act gives minority voters a more easily navigable channel to challenge discriminatory voting systems than Section 2 of the VRA. Similarly, just this year, Washington state passed a state-level Voting Rights Act.
In the past, the Voting Rights Act won wide bipartisan support. In 2006, the Senate voted 98-0, and the House 390-33 to renew every section of the Act — including the provision the Supreme Court later struck down. At a White House bill signing, President George W. Bush declared, “By reauthorizing this act Congress has reaffirmed its belief that all men are created equal.” Many who voted in favor are still in Congress today. The American public also supports the VRA. According to a 2014 poll, 81 percent of voters support the VRA, and 69 percent support restoring it, including 57 percent of Republicans and 84 percent of Democrats.
The Voting Rights Act was a remarkable accomplishment, ushering in the promise of real political equality after centuries of abuse. Restoring and strengthening its protections is crucial to ensuring our elections remain free, fair, and accessible for all Americans.
The full Brennan Center for Justice Solutions 2018 Democracy Agenda is available here.