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How We Can Restore the Voting Rights Act

Congress should restore the full protections of the Voting Rights Act, and states should supplement those protections.

Published: August 6, 2018

Below is an excerpt of the Bren­nan Center’s Solu­tions 2018 Demo­cracy Agenda that explains how and why Congress and states can restore the power of the Voting Rights Act:

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In Shelby County, the Supreme Court neutered preclear­ance, ruling that the law used an out-of-date formula to determ­ine which states were covered.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.