Voting discrimination continues to be a substantial problem in America. In 2013, when the Supreme Court struck down a key provision of the Voting Rights Act (VRA), in Shelby County v. Holder, the Court called on Congress to update the bill to address the realities of voting discrimination today.
On June 24, 2015, the Voting Rights Advancement Act (Advancement Act) (H.R. 2867 / S. 1659) was introduced in the House and Senate. The Advancement Act has received broad and vocal support from the civil rights community because it responds to the unique, modern-day challenges of voting discrimination that has evolved in the 50 years since the Voting Rights Act first passed. The Advancement Act recognizes that changing demographics require tools that protect voters nationwide—especially voters of color, voters who rely on languages other than English, and voters with disabilities. It also requires that jurisdictions make voting changes public and transparent.
The Voting Rights Advancement Act would:
Modernize the preclearance formula to cover states with a pattern of discrimination that puts voters at risk.
Modern-day voting discrimination is not only a problem in the South. Based on a review of recent voting rights violations, states like California and New York as well as Texas, Alabama, and North Carolina would be required to have all of their voting changes precleared. Other states that would be covered if the bill is passed this year would be Arizona, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina, and Virginia. Preclearance would be lifted after 10 years for states and local jurisdictions without violations.
Ensure that last-minute voting changes won’t adversely affect voters.
Communities have a right to know about voting changes that affect them. To put an end to last-minute changes to election laws or procedures that may adversely impact voters, the Advancement Act requires that jurisdictions publicly notice all changes to voting laws that happen within 180 days before an election.
Protect voters from the types of voting changes most likely to discriminate against people of color and language minorities.
The Advancement Act would require jurisdictions nationwide to preclear changes that make it harder for voters of color or language minority voters to make their voices heard. These types of changes include:
- Additions to or subtractions of seats that could affect the influence of minority voters. Localities seeking to dilute the strength of minority voters have added at-large seats to city councils, instead of allowing minorities more voting strength in particular neighborhoods. For instance, after Shelby, Pasadena, Texas, passed a referendum that changed the city council from eight localized district seats to six district seats and two seats elected at-large. The change reduced Latino voting strength.
- Reducing the availability of voting materials in languages other than English.
- Adding new barriers to voter registration or verification.
- Reducing, consolidating or relocating polling places.
Enhance the Ability to Apply Preclearance Review when Needed
The Advancement Act permits a federal court to use its discretion to order a preclearance remedy if it finds any violation of the Voting Rights Act, including a violation based on a finding of discriminatory intent or result, including those resulting from a state photo ID law.
Expands the Effective Federal Observer Program
The Advancement Act permits the attorney general to send federal observers to any place she determines there is a substantial risk of racial discrimination at the polls on Election Day or during the early voting period. The bill also makes clear the tribal governments have the ability to request federal election observers and monitors.
Improves Voting Rights Protections for Native Americans and Alaska Natives
The Advancement Act would require jurisdictions to offer greater access for voter registration and voting on and off Indian reservations. The bill also ensures that ballots are translated into all written Native languages in jurisdictions with are required to provide registration, voting notices, forms, instructions, assistance or other materials – including ballots – in the language of the applicable minority group.
In the two years since the Shelby decision, Congress has failed to restore the Voting Rights Act, and voters have been subject to more discrimination that at any time in the past 50 years. Congress now has two bills—the Voting Rights Amendment Act and the Voting Rights Advancement Act—to use as vehicles for restoring the Voting Rights Act. Congress must come together, as it has each time the Voting Rights Act has been before it, to restore the protections of the VRA.
We need a modern, flexible, and forward-looking Voting Rights Act (VRA). A bipartisan bill introduced in the U.S. House of Representatives on February 11, 2015, the Voting Rights Amendment Act of 2014 (H.R.885), includes many elements of an effective approach.
Enhancing the Ability to Apply Preclearance Review when Needed
The VRAA amends Section 3(c) of the Voting Rights Act to permit a federal court to use its discretion to order a preclearance remedy if it finds any violation of the VRA, including a violation based on a finding of discriminatory intent or result. Under current law, a court can only order a preclearance remedy if it finds a constitutional violation, which requires a finding of intentional discrimination. This bill does contain a notable exception: a federal court could not order a preclearance remedy based on a finding that a state’s photo ID law resulted in racial discrimination in violation of Section 2 of the Act.
Nationwide Review and Remedies for Current Discrimination
The VRAA provides that any state that has had five (5) voting rights violations in the prior 15 years, including one statewide violation, would be subject to Section 5 preclearance, meaning a review of all voting changes at the state and county level, before those changes can be implemented. A county in a non-covered state would be required to have voting changes precleared if it had either three (3) voting rights violations in the prior 15 years or one (1) violation and a determination by the Department of Justice (DOJ) that the county’s minority voter turnout was “persistently extremely low.” The DOJ will perform a nationwide, annual assessment to determine which states and counties meet these new criteria. In this way, the coverage is constantly updated to reflect the most recent record of discrimination in each state and county. A state or county covered by this mechanism would remain covered for 10 years.
Greater Transparency with Nationwide Notification
The VRAA requires all states and counties to provide public notice of certain voting changes, including: last-minute changes, changes to polling place resources, and changes relating to demographics and electoral districts, such as redistricting, reapportionment, change from at-large to district-based elections, and changes from district-based to at-large elections. It also requires states and counties to disclose certain demographic information about the change under particular circumstances.
Expanding the Effective Federal Observer Program
The VRAA clarifies that the U.S. attorney general retains the ability to send federal observers to monitor elections in places with Section 5 preclearance obligations. It also expands the program to permit the attorney general to send federal observers to places that are required under the VRA to provide election materials in multiple languages.
Stopping Discriminatory Voting Changes Before They Take Effect
The VRAA enhances the ability of voters to obtain preliminary injunctive relief when challenging certain types of voting changes that are likely to be discriminatory. This provision would allow courts to maintain the status quo while reviewing a potentially discriminatory voting change. This standard would be applied by the courts on a case-by-case basis, is designed to address what the Supreme Court calls “current needs,” and would apply nationwide. This ability for a court to “press pause” on a voting change is especially important because after-the-fact remedies are generally not helpful in voting rights cases given the difficulty of fashioning a remedy that restores to voters the equal opportunity to participate in an election that has already taken place.