Black Enfranchisement: After the Voting Rights Act
The Voting Rights Act of 1965 was one of the most transformational pieces of legislation ever passed by Congress. Implemented at a time when Jim Crow era voter suppression laws were disenfranchising Black citizens, the VRA had swift and consequential effects on registration rates for Black voters.
By 1966, only a single year after the passage of the Voting Rights Act, the percentage of Black voters who were registered had skyrocketed. From 11% to 51% in Alabama, from 27% to nearly 72% in Tennessee. The number of Black elected officials more than doubled in southern states, rising from 72 to 159. Not only that, but the VRA also prevented harmful bills from ever being implemented. As a reminder, section 5 required jurisdictions with a history of discriminatory voting practices to have all voting changes preapproved by the Department of Justice prior to implementation. Prior to the Shelby County decision, the Department of Justice was reviewing between 14,000 and 20,000 voting changes per year. Per the DOJ, these voting changes range from policies that pertain to redistricting and polling places to voter registration and maintenance of voter rolls.
The Voting Rights Act has been reauthorized, amended, and expanded a total of five times: in 1970, 1975, 1982, 1992, and 2006. The most recent reauthorization of the VRA in 2006 was a unanimous, 25 year extension of the Act. Had the Act not been reauthorized, it would have expired in 2007.
Despite the Act still being in effect, Supreme Court decisions in the last decade have defanged much of what made the Voting Rights Act an effective piece of legislation. In 2010, Shelby County, Alabama filed a lawsuit that argued that Section 5 of the Voting Rights Act, which requires jurisdictions with a history of discriminatory practices to submit voting changes to the Department of Justice to ensure that they will not have a harmful effect on minority voters, was unconstitutional. The case was appealed all the way up to the Supreme Court. In 2013, the Court ruled that Section 4(b) of the Voting Rights Act, which dictates the formula used to determine which jurisdictions are covered by Section 5, was outdated and thus unconstitutional.
Justice Ginsburg wrote a now famous dissent for Shelby County v. Holder and summed up the continued necessity of preclearance as follows: “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.”
Notably, the Supreme Court did not rule that preclearance itself was unconstitutional. Rather, it ruled that the current formula being used to establish coverage for preclearance was unconstitutional. Following the decision, the burden was on Congress to pass a new coverage formula. But Congress has not passed a new formula and as a result, voting changes have been made completely unchecked in previously covered jurisdictions. Moreover, there are many jurisdictions that were never covered by section 5 that have passed and continue to pass harmful legislation. Only 7 states, Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia, were covered in their entirety and 4 states, Arizona, Hawaii, Idaho, and North Carolina, were covered partially. A new coverage formula would include not only previously covered jurisdictions that are still making efforts to discriminate against voters, but also states and jurisdictions that were previously able to pass legislation without the oversight of the Voting Rights Act.
The John Lewis Voting Rights Advancement Act, a piece of federal legislation considered by Congress earlier this year, would have created a new and more up to date preclearance formula to determine coverage. The bill, however, was blocked by the Senate. This is a far cry from the unanimous 25 year extension of the Voting Rights Act approximately 15 years ago and reflects a major shift in attitude toward voting rights, with negative implications particularly for voting rights for Black Americans.
Shelby County v. Holder has had a significant effect on the behavior of previously covered states. Almost immediately, Texas, Mississippi, and Alabama began instituting photo ID laws that were not previously allowed due to preclearance. Two months after the Shelby decision, North Carolina passed a bill that “instituted a strict photo ID requirement; curtailed early voting; eliminated same day registration; restricted pre-registration; ended annual voter registration drives; and eliminated the authority of county boards of elections to keep polls open for an additional hour.” The bill was eventually struck down by the U.S. Court of Appeals for the Fourth Circuit in 2016 because it violated Section 2 of the Voting Rights Act, targeting “African Americans with almost surgical precision.”
Section 2 of the Voting Rights Act has, since 2013, been one of the last firewalls protecting voting rights. Section 2 “prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups identified in Section 4(f)(2) of the Act.” In 2021, however, the Supreme Court chipped away at that firewall in its Brnovich v. DNC decision. The case looked at whether Arizona election law H.B. 2023, which includes provisions concerning out of precinct voting and third party ballot collection, violated section 2 of the Voting Rights Act. The court found that H.B. 2023 did not violate section 2 and went on to describe five guideposts to be used in the future to determine section 2 compliance. Notably, Justice Kagan’s dissent disagrees with the majority and focuses on the “disparate impact” of the law on certain minority groups. The Brnovich decision calls into question not only the future of section 2 of the Voting Rights Act as a tool to combat discrimination, but also the future of antidiscrimination and disparate impact standards more generally.
With both preclearance and section 2 in question, Congress needs to pass legislation to restore the Voting Rights Act now more than ever. Until Congress does so, we will continue to see policies that disproportionately disenfranchise Black voters and other voters of color. For example, strict voter ID laws and restrictions on Sunday voting have both been shown to have a disproportionate effect on voters of color. Not only that, but voters of color often experience significantly longer wait times at the polls, have their mail ballots rejected at higher rates, and are disproportionately impacted by polling place consolidation.
The Voting Rights Act of today pales in comparison to the game changing piece of legislation that was passed in 1965. As various sections of the VRA are weakened, we have seen states regressing and implementing policies to disenfranchise voters of color, and in particular Black voters. It is likely this backslide will continue until both states and the federal government pass legislation that further protects the right to vote for all Americans.