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Expert Brief

Restore the Voting Rights Act

The Brennan Center’s Democracy Agenda outlines a series of concrete proposals that the next President and Congress should embrace to improve democracy in America.

Published: February 4, 2016

Read our 2018 Demo­cracy report here.

Fifty years ago, the Voting Rights Act (VRA) outlawed discrim­in­at­ory prac­tices designed to prevent people of color from voting. The law allowed citizens and the govern­ment to chal­lenge discrim­in­at­ory laws in court. Crit­ic­ally, it also required states with a history of discrim­in­a­tion to prove new elec­tion laws would­n’t discrim­in­ate on the basis of race — before they went into effect. This was called “preclear­ance.”

The VRA worked. Over the next five decades, it blocked scores of restrict­ive meas­ures that would have harmed voters and dramat­ic­ally improved minor­ity voter regis­tra­tion and parti­cip­a­tion. 

Preclear­ance was crit­ical. Between 1999 and 2005, for example, more than 250 discrim­in­at­ory voting changes, many at the local level, were with­drawn or altered because of the Voting Rights Act, and the Depart­ment of Justice blocked 17 changes to elec­tion laws in 2012 alone.[1]

Then, in June 2013, the Supreme Court gutted a core provi­sion of the Act in its 5–4 Shelby County v. Holder decision. The Court held that the law used an out-of-date formula to determ­ine which states had to comply with the preclear­ance require­ment.

The effects were imme­di­ate. Hours after the decision, Texas moved forward with a photo ID law that had been blocked just one year before because it discrim­in­ated against poor and minor­ity voters.[2] Texas’s new law required citizens to show forms of ID that 600,000 registered voters, includ­ing a dispro­por­tion­ate number of African-Amer­ic­ans and Hispan­ics, do not have.[3] North Caro­lina passed what is widely considered the nation’s most restrict­ive voting law. The meas­ure cut early voting, which was used by 70 percent of African-Amer­ic­ans voters, among other changes. Two other states — Alabama and Missis­sippi — also rushed to enact voting restric­tions.

Now, states are free to intro­duce new restric­tions that previ­ously would at least have been eval­u­ated under the Voting Rights Act. Citizens must chal­lenge these meas­ures in court after they go into effect, which is both lengthy and expens­ive.[4] These news laws also extend to redis­trict­ing. A number of states, which before required preclear­ance, have tried to redraw their maps to disad­vant­age African Amer­ic­ans by pack­ing them into districts to weaken the strength of their community’s vote.[5]

Proposal

This year will be the first pres­id­en­tial elec­tion in 50 years without the crit­ical protec­tions lost in Shelby County. Congress must act on one of two bills before it that would restore them and address the Supreme Court’s concerns. Both the bipar­tisan Voting Rights Amend­ment Act[6] and the Voting Rights Advance­ment Act[7] would update the formula and make the VRA oper­a­tional again.

Why This Can Be Achieved

Both history and current public senti­ment suggest the VRA can tran­scend partisan lines. As recently as 2006, the Senate voted 98–0, and the House 390–33 to renew every section of the Act — includ­ing the provi­sion the Supreme Court struck down.[8] Many of the members who voted for the VRA 10 years ago are still in Congress

And just as import­antly for Congress, the Amer­ican public, across demo­graph­ics, supports the VRA. Accord­ing to a 2014 poll, 81 percent of voters support the Act, and 59 percent support restor­ing it.[9] Effect­ively mobil­ized, this public support could help sway elec­ted offi­cials and drive legis­la­tion.

Resources

Next: Expand Early Voting


[1] See Section 5 Objec­tion Letters, Dept. of Justice, avail­able at http://www.justice.gov/crt/records/vot/obj_letters/index.php. Unfor­tu­nately, because of the loss of Section 5’s notice require­ment, it is diffi­cult to learn of voting changes at the local level, which typic­ally are not as high profile as the state-level changes. While some local voting changes have come to light, many others (like polling place clos­ures, local elec­tion cancel­la­tions, and the like) are undoubtedly undis­covered.

[2] Tomas Lopez, ‘Shelby County’: One Year Later, Bren­nan Ctr. for Justice, June 24, 2014, http://www.bren­nan­cen­ter.org/analysis/shelby-county-one-year-later#_edn6 ; Texas v. Holder, 888 F. Supp. 113, 127 (D.D.C. 2012), avail­able at http://www.bren­nan­cen­ter.org/sites/default/files/legacy/Demo­cracy/VRE/340%20Opin­ion%20Deny­ing%20States%20Re­quest%20for%20a%20De­clar­at­ory%20Judg­ment.pdf (“[U]ndis­puted… evid­ence demon­strates that racial minor­it­ies in Texas are dispro­por­tion­ately likely to live in poverty, and [that the ID law] will weigh more heav­ily on the poor”).

[3] Vishal Agra­harkar, 50 Years Later, Voting Rights Act Under Unpre­ced­en­ted Assault, Bren­nan Ctr. for Justice, Aug. 2, 2015, https://www.bren­nan­cen­ter.org/analysis/50-years-later-voting-rights-act-under-unpre­ced­en­ted-assault.

[4] Myrna Pérez & Jerry H. Gold­feder, After ‘Shelby County’ Ruling, Are Voting Rights Endangered, N.Y. L. J., Sept. 23, 2013, avail­able at http://www.newyork­law­journal.com/id=1202620155845?slre­turn=20150629134043#ixzz2fjzyy8UV.

[5] Justin Levitt, Quick and Dirty: The New Misread­ing of the Voting Rights Act, Fla. St. U. L. Rev. (forth­com­ing 2015), avail­able at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2487426.

[6] Bipar­tisan Bill Intro­duced, Congress Must Restore Voting Rights Act, Bren­nan Ctr. for Justice, Feb. 11, 2015, https://www.bren­nan­cen­ter.org/press-release/bipar­tisan-bill-intro­duced-congress-must-restore-voting-rights-act.

[8] Myrna Pérez, Voting Rights Act is an Import­ant Moral State­ment, Sojourn­ers, Feb. 25, 2013, https://sojo.net/articles/voting-rights-act-import­ant-moral-state­ment.