We need an effective, modern, flexible, and forward-looking Voting Rights Act (VRA). A recent bill proposed in Congress, the Voting Rights Amendment Act (H.R. 3899/S. 1945), includes many elements of an effective approach, but also has room for improvement. In diverse communities, there should be a forward-looking, limited, preclearance obligation for certain voting changes that historically have been used to dilute and curtail the voting rights of growing, mobile, or emerging minority populations; the provisions around voter identification should also be removed. We are in the beginning stages of a process to advance the best possible approach to protecting voters from discrimination.
This document provides key background information about the VRA and the Supreme Court case, Shelby County v. Holder, which struck down part of the VRA.
The Voting Rights Act
The Voting Rights Act (VRA), first enacted in 1965 with large bipartisan support, is a landmark law that prohibits discriminatory voting practices that have been responsible for the denial and abridgement of the voting rights of racial, ethnic, and language minorities in the U.S. This law has been responsible for much of the progress made to outlaw discriminatory voting practices in America over the last 50 years.
Congress has very strong constitutional authority under the 14th and 15th Amendments to protect voting rights. The VRA has been a shining example of bipartisan unity and has been supported with an extensive legislative record since it was first enacted. Congress has reauthorized the VRA in a bipartisan manner four times, most recently in 2006, when President George W. Bush signed the bill into law after both the House of Representatives (390-33) and the Senate (98-0) approved the measure following an exhaustive review of evidence and testimony. During the 2006 reauthorization of the VRA, Congress conducted more than 20 hearings, heard from over 90 expert witnesses, and collected more than 15,000 pages of testimony documenting the continued need for, and constitutionality of, the statute.
The heart of the VRA is Section 5, which requires covered jurisdictions to submit any proposed changes in voting procedures to the U.S. Department of Justice or a federal district court in D.C. for a determination of whether that change is discriminatory before the change goes into effect. This process is known as “preclearance.”
Shelby County v. Holder
In April 2010, Shelby County, a largely White suburb of Birmingham, Alabama, filed suit in federal court in Washington, D.C., seeking to have Section 5 declared unconstitutional. Shelby County claimed that Congress did not have the required constitutional authority when it reauthorized Section 5 of the VRA in 2006.
On June 25, 2013, the Supreme Court of the United States ruled in Shelby County v. Holder that the coverage formula in Section 4(b) of the VRA, which was used to determine the states and political subdivisions subject to Section 5 preclearance, was unconstitutional. Thus, while the Court did not invalidate the preclearance mechanism in the VRA, it effectively halted its use by invalidating the part of the law that determined which places were subject to the preclearance obligation.
Responding to Shelby
On January 16, 2014, Congress introduced a bill amending the VRA to ensure a modern, flexible, and forward-looking set of protections that work together to provide an effective response to racial discrimination in voting in every part of the country.
The new elements of this proposed bill are directly responsive to the Supreme Court’s decision in Shelby. The enhanced ability to freeze suspect voting changes allows determinations regarding the suspension of voting changes to be based on “current needs” and narrowly tailored to the change that is suspect. The new coverage formula is narrowly tailored to only those places with the worst records of discrimination and remains “current” through an annual reevaluation. By looking at the present and recent past – the last 15 years – the new approach is never based on “old” information. This flexible tool is also forward-looking, automatically updating which jurisdictions are subject to preclearance review.
The bill currently proposed includes many key elements of a modern, flexible, and forward-looking VRA, but key improvements are needed. Congress is just in the beginning stages of a bipartisan process to improve and advance the best possible approach to protecting voters from discrimination.