- July 7, 2015: Read about AFJ at the Rally for Voting Rights and Our Democracy
- January 16, 2014: Read our blog post about the Voting Rights Amendment Act, which would undo some of the damage done by the Supreme Court decision
- June 25, 2013: Read AFJ’s statement in response to Shelby County v. Holder
When he signed into law the Voting Rights Act of 1965, President Lyndon Johnson said:
This act flows from a clear and simple wrong. . . . Millions of Americans are denied the right to vote because of their color. This law will ensure them the right to vote. The wrong is one which no American, in his heart, can justify. The right is one which no American, true to our principles, can deny.
In the decades after, the Voting Rights Act became the keystone in the arch of protection for people of color. Yet today some still seek to deny these Americans the right to vote, as we’ve seen through the proliferation of voter ID laws, cuts to early voting, and the elimination of same-day voter registration.
The Supreme Court holds much of the blame for these developments. In the 2013 case Shelby Country v. Holder, a five-justice majority of the Court struck down the “preclearance” coverage formula of the Voting Rights Act. Under the coverage formula—which considered, among other things, history of discriminatory voter suppression— certain states and locations were barred from making changes in voting laws until the U.S. Department of Justice or a federal court determined that the changes did not have either the purpose or effect of discriminating against minorities. While the preclearance enforcement mechanism is still technically in effect, it is a meaningless protection with no municipalities or states covered by it.
Following the decision, members of Congress came together to introduce a bipartisan bill—the Voting Rights Amendment Act—that would have restored much of the protection lost in Shelby County. But it quickly became clear that Republican leadership in Congress would not support it. Without their backing, the bill stalled in committee.
A bill recently introduced by Senator Patrick Leahy—the Voting Rights Advancement Act of 2015—would provide an even more comprehensive set of voter protections than proposed in the Amendment Act and respond directly to the concerns identified by the Supreme Court in Shelby County. With the 2016 elections approaching and voter suppression efforts expanding, Congress must act to protect the most important of our constitutional guarantees: the right to vote.
States Running Amok
Freed from the restrictions of the VRA following Shelby County, states rushed to make all the restrictive changes that would have failed to pass preclearance.
In Texas, the legislature passed the most restrictive voter ID law in the nation. The bill excluded commonly accepted IDs, such as those from state colleges, Indian tribes, and the Department of Veteran Affairs. Yet the bill’s supporters couldn’t articulate a reason for doing so. A U.S. district judge found that the law operated as an unconstitutional poll tax. For Texans without a birth certificate, there was no free option for getting one of the ID cards required to register. The law had previously failed preclearance under the VRA, but with that obstacle out of the way, it went into effect for the 2014 elections. The Fifth Circuit eventually found that the law violated the Voting Rights Act and has remanded it to the lower court to decide on a remedy.
North Carolina was no better. Just weeks after the Shelby County decision, the state legislature passed what election law expert Rick Hasen called “the most sweeping anti-voter law in at least decades.” The changes read as a wish list for voter suppression: cuts to early voting, stringent voter ID requirements, the end of same-day voter registration and early voter registration for 16 and 17 year olds, and the elimination of extended poll hours for long lines and other extraordinary circumstances. A challenge to the law recently went to trial. One of the state’s experts testified that it was reasonable to expect voters to walk three miles in order to cast a ballot: “I know you could probably walk 3 miles. I walk 2 miles a day, and it doesn’t wear me out very much,” he said.
Other states formerly covered by preclearance have not done much better. Soon after Shelby County, Alabama and Mississippi also implemented strict voter ID laws. In Alabama, the law was enacted in 2011, but state officials knew it would never pass preclearance. They postponed implementation until the Supreme Court ruling—two years after it was passed by the legislature. Virginia and Florida have both attempted to purge their voter rolls of thousands of people. The tactic is popular among advocates who warn of (largely nonexistent) in-person voter fraud, but in reality is more likely to disenfranchise black voters than to catch impersonators.
Even states that weren’t covered by the VRA have rolled back voting rights in the wake of Shelby County. In 2004, 130,000 Ohio voters were turned away from or left the polling places early due to extraordinarily long lines. The state responded by vastly expanding voting times, days, and registration opportunities. It led to 1.7 million Ohioans castings their votes before Election Day in 2008. But in 2014, the Republican-controlled legislature drastically reduced early voting opportunities across the state. In Wisconsin, the legislature enacted a new voter ID law that will “deter or prevent a substantial number of the 300,000-plus registered voters who lack ID from voting,” Eastern District of Wisconsin Judge Lynn S. Adelman wrote in an opinion last year. The law will be in place for the 2016 elections.
These states are not outliers. 2014 saw the second highest number of election-related lawsuits in nearly two decades. But lawsuits alone are unlikely to be a winning strategy. As DC Circuit Judge David S. Tatel prophetically warned in his 2012 lower court opinion in Shelby County, “lawsuits to enjoin discriminatory voting laws [after they take effect] are costly, take years to resolve, and leave those elected under the challenged law with the benefit of incumbency.” A functioning democracy requires stronger voter protections.
Restoring the VRA
The Voting Rights Act was enacted with a coverage formula that determined which states and localities were subject to “preclearance”—the process by which the Department of Justice or a three-judge panel decides whether to allow a change to voting laws in the jurisdiction. The formula considered whether the state or locality used a “test or device” to restrict voting in 1964, and whether less than 50 percent of the eligible constituents were registered to vote or had voted in 1964. Over time, the baseline year was changed from 1964 to 1972, where it remained in 2006 when Congress reauthorized the act for another 25 years. Then, the Supreme Court ruled in Shelby County that this coverage formula violated the “tradition of equal sovereignty” between the states because it was based on data that was too old.
The ruling betrayed the principles of justice and fairness embodied in this law for half a century—and showed a callous disregard for the realities still faced by people of color. Members of Congress immediately moved to restore the act to full strength.
The first attempt was the Voting Rights Amendment Act, introduced in early 2014. Responding to the Supreme Court’s criticisms of the VRA, the Amendment Act would create a new formula for covered jurisdictions: states would be subject to preclearance if they had five voting rights violations in the past 15 years; local jurisdictions would be covered if they had three violations in the past 15 years or one violation and “persistent and extremely low minority voter turnout.” The Amendment Act would also strengthen existing enforcement protections, making it easier for the Department of Justice to enjoin discriminatory laws and to observe elections in covered jurisdictions.
Despite the bipartisan support of the bill, House Judiciary Committee Chairman Bob Goodlatte, R-Va., has refused to hold a hearing on it, arguing the changes are unnecessary. Last month, Alliance for Justice joined hundreds of activists for rally near Goodlatte’s office in Roanoke, Va. to call on him to act.
The day after the rally, Senator Patrick Leahy, D-Vt. introduced a stronger piece of reform legislation, the Voting Rights Advancement Act of 2015, with House leaders from the Black Caucus, Hispanic Caucus, and Asian Pacific American Caucus. Said Leahy: “We had the Republican majority leader of the House [Eric Cantor] promise us that if we kept [the Amendment Act] like that it would come up for a vote. It never did. . . . So this time I decided to listen to the voters who had their right to vote blocked.” The new bill requires the Department of Justice to pre-approve changes to voting laws in states that have had 15 voting violations in the past 25 years, provides greater transparency in elections, and gives federal courts the ability to force states to obtain preclearance if voting changes are found to be discriminatory.
The bill faces an uphill battle in Congress. Congressman Goodlatte still heads the House Judiciary Committee and Senate Judiciary Committee Chairman Chuck Grassley has also resisted calls for reform.
But activists continue to push for change. The Voting Rights Act is a historic piece of legislation and, as recently as 2006, was supported by bipartisan supermajorities in both houses of Congress. The Supreme Court gutted the act. Congress needs to fix it.