In December, the U.S. House of Representatives passed a collection of bills intended to restore the Voting Rights Act of 1965 after a 2013 Supreme Court ruling took the teeth out of its most powerful tool: the federal preclearance requirement. The Voting Rights Advancement Act, like the VRA, is intended to realize the promises of the 15th Amendment, which prohibits disenfranchisement based on race.


A long-awaited turning point for voting rights and ballot access


In the mid-1960s, nearly a century after the 15th Amendment’s ratification, Reconstruction-era voter suppression mechanisms like literacy tests and poll taxes continued to disproportionately bar Black and other minority voters from the polls.

 

The first major reversal came in 1964, when the ratification of the 24th Amendment abolished poll taxes. One year later, the tide fully turned when the Civil Rights Movement, paired with a shifting Democratic coalition, galvanized Congress and President Lyndon B. Johnson to pass the VRA.

 

The VRA ushered in a new era of voting rights policies, marked by a new and expansive conception of what it means to be meaningfully enfranchised. It prohibited discriminatory state voting barriers and required federal preclearance of voting policy changes for certain “suspect jurisdictions.”

 

The VRA attacked discriminatory voting policies in two ways: by providing an avenue to challenge existing, discriminatory voting laws and by preventing new, discriminatory election laws. 


The first method relied on the VRA’s prohibition on the use of qualifications, standards, practices or procedures to deny or abridge the right to vote on account of race or color, as well as its prohibition on any individual using intimidation, threat or coercion against a voter or potential voter.

 

The second method relied on perhaps the most crucial element of the VRA: the federal preclearance requirement outlined in  Section 5. This provision required federal pre-approval — or “preclearance” — for any changes to voting practices, procedures or qualifications made in certain jurisdictions with a history of discrimination — known as “covered jurisdictions.”

 

The passage of the VRA immediately changed the political landscape of the country, and particularly that of the South. Almost 1 million Black Americans registered to vote within four years of its passage, including over 50 percent of eligible Black voters in every southern state. Black representation skyrocketed to levels unseen since Reconstruction: the 1966 elections saw more than double the number of Black officials elected in the South.

 

Gutting of the VRA in Shelby County v. Holder


The VRA was extended — and occasionally expanded — at various intervals in the decades between its passage and 2013. However, as the institution of slavery, Jim Crow laws and Civil Rights Movement successes receded into the past, it became increasingly difficult to persuasively connect voter suppression efforts and racially disparate ballot access to outwardly racist motives — or ‘discriminatory intent.’


This difficulty in proving policies’ or practices’ discriminatory intent weakens the arguments in favor of federal government intervention to ensure voter protections. It is simultaneously difficult to trace exactly how much discrimination has been prevented by existing, active voter protections. The Supreme Court’s gutting of the VRA’s preclearance requirement in Shelby County v. Holder (2013) has emerged as an emblem of this tension.

 

In Shelby, the United States Supreme Court ruled that the “coverage formula” in Section 4(b) of the VRA was unconstitutional, effectively gutting Section 5’s preclearance requirement. Section 4(b) had defined the formula for determining which states or counties were subject to federal preclearance. By 2013, the data used in designing the coverage formula were more than 40 years old; the Court ruled that this lag rendered the coverage formula an impermissible burden on the covered jurisdictions when balanced against constitutional principles such as federalism and state sovereignty.

 

Though the Court did not strike down the federal preclearance requirement itself, preclearance remains inoperable in the absence of a new Congressional determination about which jurisdictions should be covered based on more recent data. Further complicating the matter is the fact that the states with the most egregious historical voting policies had been largely thwarted in new efforts to discriminate while Section 4 and Section 5 were in effect. The result is an unclear picture of whether — and, if so, how — a coverage formula based on recent decades’ data could accurately identify the jurisdictions that ought to be subject to preclearance.

 

In her dissent to the Shelby decision, Justice Ruth Bader Ginsburg highlighted this irony: “Throwing 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.”

 

Policy changes after Shelby County


Immediately after the Shelby decision came down from the high Court, officials in previously covered jurisdictions renewed campaigns to suppress voting rights and voter turnout in their states and districts. Within two hours of the decision, Texas then-Attorney General Greg Abbott announced, “With today’s decision, the State’s voter ID law will take effect immediately. Redistricting maps passed by the Legislature may also take effect without approval from the federal government.” 


Within a year, four previously covered states had either implemented stricter voter ID laws or restricted early voting. Less than two months after Shelby, North Carolina passed an exhaustive voting bill that implemented a strict photo ID requirement; limited early voting and pre-registration; and eliminated same-day registration, annual voter registration drives and the authority of county boards of elections to extend election day poll hours.

 

Policy changes that limit ballot access have a proven disparate, negative impact on Americans from minority and low-income communities. In North Carolina, 7 out of 10 Black voters in 2008 used the early voting period; limits on early voting gutted the massive “Souls to the Polls” early voting movements in Black religious communities in the South. Without the defense of federal preclearance against potential state discrimination, minorities are increasingly denied access to the franchise, limiting the effectiveness of the VRA to ensure equitable ballot access.

 

In the absence of the preemptive federal clearance measures imposed by Section 5, litigation has become the primary method of overturning discriminatory voting laws, with mixed results. State-based discrepancies in the protection of minority rights by federal courts have rendered litigation much less effective than the preclearance requirements of the VRA. Between Shelby County and the 2016 presidential election, 15 states enacted new voting restrictions. 


One law professor analogized relying on the non-preclearance sections of the VRA to setting out to build a house and finding that your power tools had been lost. Litigation based on the Act’s other sections are like hammers and saws: capable, but much less effective and efficient.


The U.S. Representatives who passed the Voting Rights Advancement Act sought to restore the VRA’s toolbox to its full arsenal of mechanisms to protect against electoral discrimination and voter suppression. Sen. Patrick Leahy (D-Vt.), the sponsor of the Senate companion bill, described it as an attempt to “undo the damage done by the Shelby County decision.” The bill has been on Senate Majority Leader Mitch McConnell’s desk for more than six months.


Contact the author at jackieoneil@govsight.com.