The U.S. Supreme Court struck down a key provision of the 1965 Voting Rights Act just a year ago this month. The Court’s decision sparked a debate on the state and federal level about how (or whether) we should “fix” the Voting Rights Act or somehow fill the void that the ruling created.
On the anniversary of the Voting Rights Act’s darkest hour, it’s time to embrace a new framework for 21st Century voting rights. This new framework would reinvigorate (and update) those protections in the federal Voting Rights Act that must emanate on the national level.
But that’s not enough. The Court’s decision shows that we must combine this federal effort with new protections on the state level. Both fixing the federal Voting Rights Act and passing state-by-state protections will ensure that our elections continue to reflect this increasingly diverse country.
But first, let’s explore why we need a fix in the first place, and then discuss the proposed fixes that Congress and the states are considering.
Last year, the U.S. Supreme Court took up Shelby County v. Holder, an appeal concerning the constitutionality of Sections 4 and 5 of the Voting Rights Act.
Section 5 involves so-called “covered jurisdictions” throughout the United States. These jurisdictions historically had discriminated against racial minorities — particularly African Americans and Latinos — so much that they had to seek federal approval before implementing any changes in their voting practices or procedures. Through this process of “preclearance” the Department of Justice was able to weed out discriminatory practices or reforms (such as moving polling places at the last minute) before the states or local jurisdictions could implement them.
Section 4 contains the “coverage formula,” determining which jurisdictions required the early federal approval for any changes in voting practices. Sections 4 and 5 were always meant to work together. Together these two provisions were used to prevent discrimination in advance, rather than relying on drawn-out litigation based on a law’s discriminatory effects.
The coverage formula, and by extension the preclearance requirements, covered nine states completely (Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia) and specific counties in another six states (California, Florida, Michigan, New York, North Carolina, South Dakota).
For the most part, however, that list hadn’t changed since 1965. And that is where the Court found a constitutional infirmity.
Officials of Alabama's Shelby County argued that Section 4 was unconstitutional because the same jurisdictions that were covered in 1965 were still covered in 2013 (with few exceptions). Despite earlier warnings from the Court, Congress had failed to update the coverage formula.
The Court agreed with Shelby County, pointing out that because the coverage formula had not meaningfully changed in nearly 50 years, it suffered from both over-inclusion and under-inclusion — meaning there were some jurisdictions that should no longer be on the list, and some jurisdictions should be on the list, but aren’t. The Court therefore concluded that Section 4 was woefully — and unconstitutionally — outdated.
The Shelby County decision killed two birds with one stone: striking down Section 4 meant that Section 5’s preclearance requirements no longer applied to any jurisdictions. Preclearance, which for decades had served as a bulwark against discriminatory election laws, was no more.
Almost immediately after the Shelby County decision, eight of the nine states that had been covered under Section 4 immediately moved to pass laws the Justice Department had blocked under Section 5. These included onerous new voter identification laws and registration requirements, cuts to early voting and other restrictions on when and where individuals could vote.
In other words, it was open season for those seeking to restrict the right to vote.
While many of these laws have sparked lawsuits under other sections of the Voting Rights Act (particularly Section 2), without Section 5 litigants can rarely stop these laws before they go into effect.
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