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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 Between 1999 and 2005, for example, more than 250 discriminatory voting changes, many at the local level, were withdrawn or altered because of the Voting Rights Act, and the Department of Justice blocked 17 changes to election laws in 2012 alone.[1]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 The Court held that the law used an out-of-date formula to determine which states had to comply with the preclearance requirement.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.