Voting rights: A path forward here and in D.C.

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. 

Congress, the states and voting rights proponents have reacted in different ways.

In Congress, a bipartisan group of lawmakers introduced the Voting Rights Amendment Act of 2014, earlier this year. Spearheaded by Representative Jim Sensenbrenner, R-Wisconsin, and Senator Patrick Leahy, D-Vermont, this bill would update Section 4’s coverage formula and thereby re-activate Section 5’s preclearance requirements. 

Under the Sensenbrenner-Leahy proposal, the coverage formula would be based on recent violations of federal law. Specifically, states with five or more violations in the past 15 years, or local jurisdictions with three or more violations in the past 15 years, would need advance approval for changes in voting. This approach would address the Court’s requirement that the advance approval requirement be justified by contemporary criteria.

While a new coverage formula is better than no formula at all, there are several problems with this approach. First, under this new formula preclearance would only apply to four states (Georgia, Louisiana, Mississippi, and Texas), and leave out several states with recent histories of voting restrictions (for example, Alabama, Arizona, and Florida), and also leave out plenty of local jurisdictions with mixed records on voting rights.

Worse still, as a political compromise to get GOP support, the bill says that Department of Justice objections to voter identification laws would not count as a violation. (However, court judgments striking down voter identification laws would count.)

States generally have responded in two ways. On the one hand, most of the states that wanted to pass laws that would not have passed muster before, have moved to do so — taking full advantage of the leeway afforded by the Court’s decision. 

On the other hand, states with legislatures that favor facilitating (rather than restricting) the right to vote have moved in the other direction. But this latter group was never really affected by the advance approval burdens. For instance, here in Washington state the Legislature has made significant efforts to make it easier to register and to vote. Voter identification laws have not found much of any support in Olympia.

As for voting rights advocates, and the Department of Justice, they have had to place more reliance on Section 2, which broadly prohibits voting practices or procedures that discriminate on the basis of race, or denies any racial or language minority “an equal opportunity to participate in the political process.” These provisions never had an expiration date and apply to all states and jurisdictions.

But placing more eggs in the Section 2 basket is a precarious fallback because that provision has been battered and watered down by an increasingly conservative Supreme Court over the past 30 years. Even when a law is successfully challenged, by the time a case has been resolved, the law or procedure may have been on the books for years. Despite its limitations, however, Section 2 remains one of the last options available to voting rights advocates seeking to challenge discriminatory laws. 

But it doesn’t have to be that way.

The best path forward would combine and coordinate efforts on the state and federal level to reform and revitalize voting rights nationwide.

On the federal level, the Voting Rights Amendment Act of 2014 is certainly a step in the right direction because it provides a contemporary standard for advance approval coverage. That said, the bill doesn’t go far enough. There are two ways it can be improved.

First, voter identification laws should not be treated any differently for purposes of determining preclearance coverage. The current language of the bill creates a massive loophole that threatens to swallow its protections. In fact, carving out voter ID laws for special treatment may embolden some states to not only pass restrictive new voter ID, but also stuff those laws with other restrictions to avoid federal scrutiny altogether.

The other danger with shielding voter ID laws is that it would normalize a practice that’s been used effectively (and insidiously) around the country to depress minority voters. Any amendment to the Voting Rights Act should make it harder, not easier to pass these types of laws.

Second, in amending the Voting Rights Act to fix Sections 4 and 5, Congress shouldn’t forget about Section 3 — a provision that some have called the Act’s “secret weapon.” As it’s currently written, Section 3 allows for certain jurisdictions to be “bailed-in” to Section 5’s preclearance if a litigant proves that the jurisdiction “intentionally” discriminated on the basis of race. 

It’s anachronistic to require evidence of intentional discrimination in this day and age. Discriminatory laws are now far more subtle, and proponents of these laws are unlikely to publicize their discriminatory intent. Besides, the effects of a law are far more important and relevant than what a particular lawmaker may have intended. Congress should leave out the intentionality requirement and simply mandate that any violation of voting laws could be grounds for preclearance.

This approach to Section 3 would also address the overinclusive/underinclusive dilemma the Court pointed out in Shelby County: States without recent violations would be removed from the preclearance list, rather than linger there indefinitely; and states with recent violations will be added to the list, rather than be left out.

Lawmakers on the state level should not wait for Congress to pass a “one size fits all” solution. While fixing Section 5’s coverage formula can only happen on the federal level (because states can’t be expected to “preclear” themselves), states can and should pass their own voting rights protections.

In particular, several states are considering state-based analogues to Section 2 of the federal Act. In 2002, California passed the “California Voting Rights Act,” which streamlined challenges to electoral practices that denied minorities an equal opportunity to elect candidates of their choice. Similarly, here in Washington state, the legislature has been debating its own “Washington State Voting Rights Act.” The state House of Representatives has passed the act the past two years, and Gov. Jay Inslee has promised to sign the bill — but it has stalled in the State Senate. (Full disclosure: I co-authored the act three years ago, and have testified in its favor.)  Colorado, Illinois, and New York are now considering their own voting rights acts, too.

These state-based efforts to import and buttress the protections embedded in Section 2 would give voting rights advocates a much needed alternative to federal litigation, which is costly, time consuming and comes with limited and inflexible remedies.

The obvious weakness with state-based acts is that trusting states like Arizona, Georgia or Texas to pass laws protecting voting rights is the political equivalent of letting the fox guard the henhouse. Simply put, states with the worst records are the least likely to pass laws that protect voting rights. That’s why state-based laws will never replace the need for robust federal legislation. 

But we can’t count on Congress to take any action, much less meaningful action, given the gridlock in the “other Washington.” That makes state voting rights acts so important.  While not every state will pass its own act, some will. After falling short the past two sessions, lawmakers in Olympia seem poised to make Washington the next state to pass its own act. Each state that does so will reduce our reliance on an increasingly brittle and creaky federal act. 

It hasn’t been a great year for the Voting Rights Act. But if Congress can overcome its own gridlock to update Section 4’s coverage formula and strengthen Section 3’s “bail-in” procedures, and if state voting rights acts begin to take root around the country, the future of voting rights will be much brighter than they appeared a year ago.

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