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Senate Testimony: Working Together to Restore Protections of the Voting Rights Act

Unless Congress acts, there is a real risk that a significant number of discriminatory voting changes could be put in effect in jurisdictions previously covered by the law.

Published: July 17, 2013

Before the Senate Judi­ciary Commit­tee
Hear­ing on “From Selma to Shelby County: Work­ing Together to

Restore the Protec­tions of the Voting Rights Act”

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On behalf of the Bren­nan Center for Justice, I thank the Senate Judi­ciary Commit­tee for the oppor­tun­ity to submit testi­mony in connec­tion with this import­ant hear­ing, “From Selma to Shelby County: Work­ing Together to Restore the Protec­tions of the Voting Rights Act.” The Bren­nan Center is a nonpar­tisan law and policy insti­tute that focuses on issues of demo­cracy and justice; among other things, we work to ensure fair and accur­ate voting proced­ures and systems, and that every eligible Amer­ican, and only eligible Amer­ic­ans, can parti­cip­ate in elec­tions.[1]

Because of the cent­ral­ity of voting to our system of demo­cracy, and because of the persist­ence of racial discrim­in­a­tion in the voting process, we urge Congress to work quickly, and in a bipar­tisan manner, to restore the protec­tions of the Voting Rights Act that were rendered inop­er­at­ive by the Supreme Court’s recent decision in Shelby County v. Holder. The purpose of my testi­mony is to bring to this Commit­tee’s atten­tion recent research by the Bren­nan Center that under­scores the urgency of congres­sional action now. Specific­ally, in If Section 5 Falls: New Voting Implic­a­tions, attached to this testi­mony, Myrna Pérez and Vishal Agra­harkar cata­log, quantify, and describe some of the substan­tial number of discrim­in­at­ory voting changes that offi­cials in covered juris­dic­tions have previ­ously sought to put in place and may now attempt to put in place in the wake of the Supreme Court’s decision in Shelby County.

I.          The Supreme Court’s Decision in Shelby County

The Supreme Court in Shelby County effect­ively evis­cer­ated the core provi­sion of the Voting Rights Act, leav­ing millions of voters without the protec­tion of the most effect­ive tool in Amer­ican law to combat racial discrim­in­a­tion in voting. The Voting Rights Act is widely acknow­ledged as the most effect­ive piece of civil rights legis­la­tion, a corner­stone of Amer­ican law guar­an­tee­ing polit­ical equal­ity. As polit­ical lead­ers on both sides of the aisle recog­nized when Congress over­whelm­ingly reau­thor­ized the law just seven years ago, Section 5 is a crit­ical and neces­sary element of that Act.[2]

A robust Voting Rights Act — with a rein­vig­or­ated Section 5 at its core — contin­ues to be neces­sary to secure the equal voting rights prom­ised to all citizens by the Consti­tu­tion. “[N]o one doubts,” as Chief Justice Roberts declared, that the prob­lem of “voting discrim­in­a­tion still exists” in Amer­ica,[3] espe­cially in places with a history of such discrim­in­a­tion. Congress made substan­tial find­ings on this point in 2006, and we expect the evid­ence before this Commit­tee to further demon­strate the unfor­tu­nate persist­ence of racial discrim­in­a­tion in voting. Although the coun­try has made substan­tial progress since 1965, the work of the Voting Rights Act is unfin­ished. Until last month, Section 5 was a crit­ical engine for this progress and a crit­ical deterrent for discrim­in­at­ory voting prac­tices. Exist­ing laws are simply insuf­fi­cient to fill the void left by the Supreme Court’s decision.

In Shelby County, the Supreme Court expressly left the door open for Congress to restore or replace Section 5.[4] Although the real-world effect of the Court’s decision was sweep­ing, the legal ruling was actu­ally relat­ively narrow. The Court inval­id­ated Section 4 of the Voting Rights, the cover­age formula that determ­ined which states were subject to the require­ments of Section 5, on the basis of its find­ing that the formula was outdated and had not been tailored to “current condi­tions.”[5] The Court thus rendered Section 5 inop­er­at­ive in prac­tice, but, for the second time since 2006, it expressly declined to strike down Section 5. The Court expressly acknow­ledged that the prob­lem of race discrim­in­a­tion in voting has not been erad­ic­ated and that Congress may act to remedy that prob­lem.[6] Indeed, the decision in no way under­mined Congress’s express powers, under both the Four­teenth and Fifteen Amend­ments to the U.S. Consti­tu­tion, to combat racial discrim­in­a­tion in voting through appro­pri­ate legis­la­tion. Moreover, in another case this Term, the Court reaf­firmed Congress’s “broad” and “para­mount” powers to regu­late how federal elec­tions are conduc­ted.[7] Congress thus has an extremely strong basis to pursue much-needed legis­lat­ive efforts to protect all Amer­ic­ans against the threat of discrim­in­a­tion in voting.

II.        Implic­a­tions of Loss of Section 5 Protec­tions

We commend this Commit­tee for taking up this import­ant issue at this time. We urge Congress to act exped­i­tiously to restore or replace Section 5. As outlined in If Section 5 Falls: New Voting Implic­a­tions,[8] a Bren­nan Center report released shortly before the decision in Shelby County, there is a seri­ous risk that, without the protec­tions of Section 5, juris­dic­tions could now attempt imme­di­ately to put in place discrim­in­at­ory voting changes by: re-enact­ing discrim­in­at­ory changes that were blocked by Section 5; pursu­ing policies previ­ously deterred by Section 5; imple­ment­ing changes that were poten­tially discrim­in­at­ory but had not yet been reviewed by the Depart­ment of Justice; passing new restrict­ive voting changes; or enfor­cing previ­ously blocked changes that remain on the books.

The report makes clear that the magnitude of the prob­lem is substan­tial. The imme­di­ate impact of the decision has been to enable juris­dic­tions to move forward with voting changes — includ­ing those that are poten­tially discrim­in­at­ory — without Depart­ment of Justice or court review. Accord­ing to news reports, at the time of the Court’s decision the Depart­ment of Justice had 276 submis­sions of voting changes await­ing its review under Section 5.[9] Those changes will now go forward without further review to determ­ine if they are discrim­in­at­ory.

Unless Congress acts, future discrim­in­at­ory voting changes will also move forward without review. In the run-up to the 2012 elec­tions, state legis­latures passed scores of new laws that would have made it harder for eligible Amer­ic­ans to vote.[10] While most of the restrict­ive new voting laws were blocked, mitig­ated, or repealed before the elec­tions, efforts to cut back on voting access continue.[11] In the most recent legis­lat­ive session (as of April 29, 2013), 28 restrict­ive voting bills were intro­duced in states that were covered wholly or in part by Section 5, and two of those bills already passed.[12] To the extent that those bills are discrim­in­at­ory, Section 5 can no longer func­tion to deter their passage or prevent their imple­ment­a­tion.

Another threat in the wake of Shelby County is that juris­dic­tions may seek to re-enact or imple­ment voting changes that have previ­ously been form­ally blocked by Section 5. Our report iden­ti­fied, among other things:

  • 31 discrim­in­at­ory elec­tion changes had been blocked by the Depart­ment of Justice since Congress reau­thor­ized the Voting Rights Act in 2006;[13]
  • three examples in the run up to the 2012 elec­tion where federal courts denied preclear­ance to proposed elec­tion changes;[14] and
  • multiple cases where Section 5 blocked repeated attempts by a single juris­dic­tion to dilute minor­ity voting strength.[15]

The report further found that some previ­ously blocked voting changes remain on the books, lead­ing to the possib­il­ity juris­dic­tions could begin enfor­cing them.[16] For example, the report iden­ti­fies two discrim­in­at­ory state laws blocked by Section 5 which remain on the books.[17]

Perhaps the largest impact of the Shelby County decision will be the loss of the power­ful deterrent effect of Section 5 on discrim­in­at­ory voting prac­tices. To give a sense of the magnitude of this prob­lem, the report poin­ted out that:

  • 153 voting changes were aban­doned between 1999 and 2005 after the Depart­ment of Justice reques­ted more inform­a­tion about a juris­dic­tion’s Section 5 submis­sion;[18] and
  • In several cases in the run up to the 2012 elec­tion, Section 5 deterred restrict­ive voting changes, either through more inform­a­tion requests by the Depart­ment of Justice, or when offi­cials were first contem­plat­ing changes to their elec­tion proced­ures.[19]

These examples only graze the surface of the kinds of voting changes that have been deterred or preven­ted by Section 5 and that may now move forward more easily.  Unless Congress acts, there is a real risk that a signi­fic­ant number of discrim­in­at­ory voting changes could be put in effect in juris­dic­tions previ­ously covered by Section 5.

*    *    *

The Voting Rights Act was a remark­able accom­plish­ment for the nation, usher­ing in the prom­ise of real polit­ical equal­ity after centur­ies of abuse. The Act has taken on an iconic role, reflect­ing the coun­try’s rejec­tion of the brutal­ity of Jim Crow and embrace of the core consti­tu­tional value of polit­ical equal­ity. It has simul­tan­eously played a hard­work­ing role, protect­ing against ongo­ing discrim­in­a­tion in the voting process. The Supreme Court’s decision in Shelby County gutted the core of the Voting Rights Act. In doing so, it left a gaping hole in Amer­ican law and demands an imme­di­ate response. While Section 5 has been an enorm­ously success­ful tool in the struggle to erad­ic­ate racial discrim­in­a­tion in voting, the struggle is not over. Strong legal protec­tions are crucial to sustain­ing the core value of our demo­cracy, reflec­ted in the Declar­a­tion of Inde­pend­ence, that we all are created equal. We urge Congress to work together again to restore this crit­ical law to ensure our elec­tions remain free, fair, and access­ible for all Amer­ic­ans.

[1] The Bren­nan Center has done extens­ive work on a range of issues relat­ing to voting rights, includ­ing work to modern­ize our voter regis­tra­tion system; remove unne­ces­sary barri­ers to voter parti­cip­a­tion; make voting machines more secure and access­ible; defend the federal Voting Rights Act; and expand access to the fran­chise. Our work on these topics has included the public­a­tion of stud­ies and reports; assist­ance to federal and state admin­is­trat­ive and legis­lat­ive bodies with respons­ib­il­ity over elec­tions; and, when neces­sary, litig­a­tion to compel states to comply with their oblig­a­tions under federal and state law. This testi­mony is submit­ted on behalf of a Center affil­i­ated with New York Univer­sity School of Law, but does not purport to repres­ent the school’s insti­tu­tional views on this or any topic.

[2] See 152 Cong. Rec. H5143–02 (daily ed. July 13, 2006) (state­ment of Rep. Sensen­bren­ner, R-Wis.) (call­ing the VRA “the most success­ful civil rights act that has ever been passed”); 152 Cong. Rec. S7949–05 (daily ed. July 20, 2006) (state­ment of Sen. Fein­stein, D-Cal.) (call­ing the VRA “the most import­ant and success­ful civil rights law of the 20th century”). The 2006 reau­thor­iz­a­tion of the Voting Rights Act passed the U.S. House of Repres­ent­at­ives by a vote of 390–33 and the U.S. Senate by a vote of 98–0.

[3] Shelby Cnty., Ala. v. Holder, No. 12–96, slip op. at 2 (2013).

[4] Id. at 24.

[5] Id. at 21.

[6] Id. at 2.

[7] Arizona v. Inter Tribal Coun­cil of Ariz., No. 12–71, slip. op. 5, 6 at (2013).

[8] Myrna Pérez & Vishal Agra­harkar, If Section 5 Falls: New Voting Implic­a­tions (2013), avail­able at http://www.bren­nan­cen­­a­tion/if-section-5-falls-new-voting-implic­a­tions (here­in­after If Section 5 Falls).

[9] Bill Barrow, States Prom­ise Quick Action on Elec­tion Laws, Asso­ci­ated Press (June 26, 2013),­ise-quick-action-after-voting-ruling.

[10] If Section 5 Falls, supra note 8, at 7.

[11] See Wendy R. Weiser & Diana Kasdan, Voting Law Changes: Elec­tion Update (2012), avail­able at http://www.bren­nan­cen­­a­tion/voting-law-changes-elec­tion-update.

[12] If Section 5 Falls, supra note 8, at 8.

[13] This is the number of submis­sions of voting changes since July 2006 to which DOJ has inter­posed an objec­tion. In some cases, objec­tions by DOJ were later with­drawn, or were super­seded by a declar­at­ory judg­ment action for court preclear­ance in the U.S. District Court for the District of Columbia. See Section 5 Objec­tion Determ­in­a­tions, U.S. Dep’t of Justice, (last visited July 12, 2013) (list­ing 31 objec­tions since July 2006); see also If Section 5 Falls, supra note 6, at 3.

[14] Id. at 3.

[15] For example, within the span of a few months in 2012, Section 5 preven­ted two separ­ate discrim­in­at­ory changes to the method of elect­ing trust­ees of the Beau­mont Inde­pend­ent School District in Beau­mont, Texas. Id.

[16] Id. at 9.

[17] Id.

[18] Id. at 5.

[19] Id.