SPRING 2021 ISSUE:
The right to vote is fundamental to American democracy and the U.S. Constitution. The 15th Amendment states that the right to vote “shall not be denied or abridged” by the federal or state government.1 The 19th Amendment precludes the denial of this right on the basis of gender,2 and the 26th Amendment precludes voting discrimination on the basis of age.3 The 24th Amendment banned the use of taxes (specifically poll taxes) from disenfranchising voters.4 These constitutional protections were only secured after a century of systemic racial discrimination in voting.5 Yet the right to vote remains tenuous.
Congress passed the Voting Rights Act of 1965 (“VRA”)6 in an effort to “banish the blight of racial discrimination in voting” that persisted on a “pervasive scale” throughout the history of the country.7 Before 1965, Congress passed the Civil Rights Acts of 1957 and 1960, which allowed the federal government to attack discrimination in voting—but on a case-by-case basis, which proved incredibly difficult.8
With the VRA, Congress enacted a framework that proved “immensely successful at redressing racial discrimination and integrating the voting process.”9 Portions of the VRA, including the section banning voting discrimination based on race or color, applied nationwide. But the most critical portions are two sections that apply only to “covered jurisdictions” with a history of pervasive discriminatory practices.10 For any of these “covered jurisdictions” (including states, counties, and localities), the jurisdiction would have to get permission—or “preclearance”—from the federal government before making any change in voting procedures.11
In Shelby County v. Holder, the Supreme Court found that the formula for determining which jurisdictions were covered under the preclearance requirement was unconstitutional. As a result, jurisdictions that would have otherwise been required to seek preclearance have passed several voting restrictions that have a particularly specific effect on communities of color. Since this opinion, jurisdictions previously covered by preclearance have enacted a slew of restrictive voting laws. Most recently, Georgia enacted legislation that shortens the period for early/absentee voting, increases voter ID requirements, limits ballot drop box locations, and (among other things) bans the provision of food or water to voters waiting in line.12 Each restriction is more likely to “make it disproportionately more difficult for poorer voters and voters of color to cast their ballots.”13
A possible fix to this issue is the pending John Lewis Voting Rights Advancement Act, currently being considered by Congress.14 This proposed legislation seeks to address the Shelby County opinion by updating the VRA’s coverage formula to reflect current conditions.
The Supreme Court’s Shelby County opinion finds the coverage formula unconstitutional.
As mentioned above, Sections 4 and 5 of the VRA were designed to fight voter suppression efforts by states and certain political subdivisions (i.e., a county or city) with a history of such actions. Any jurisdiction covered under a “formula” had to obtain federal permission before making any changes to voting procedures. At the time of enactment, the coverage formula included any jurisdiction that “had maintained a test or device as a prerequisite to voting,” such as a poll tax or literacy test.15 While these sections were only at first meant to last five years, Congress expanded and extended the formula another five years in 1970.16 Congress again extended these sections in 1975, 1982, and once more in 2006.17 Each of these reauthorizations by Congress was upheld by the Supreme Court until Shelby County.18
In 2010, Shelby County, Alabama—a covered jurisdiction—sued the Attorney General in a declaratory action, seeking to have the VRA declared “facially unconstitutional.”19 Shelby County expressly attacked the coverage formula as unconstitutional. While the trial court and the Court of Appeals for the D.C. Circuit disagreed, in a 5-4 decision, the Supreme Court held that the coverage formula was unconstitutional.20
In an opinion written by Chief Justice Roberts, the Court first argued that the Supremacy Clause21 and the 10th Amendment22 gave states “broad autonomy in structuring their governments,” which included the “power to regulate elections.”23 In other words, according to the Court, “there is also a fundamental principle of equal sovereignty among the states” that precluded unequal treatment by the federal government.24 In describing the VRA, the Court said that it “sharply departs from these basic principles.”25
In the past, the Court recognized that there was good reason to uphold the VRA’s “departure.” When enacted, the VRA’s “extraordinary departure from the traditional course of relations between the States and the Federal Government” was justified because of the pervasiveness of overly racist voting requirements designed to prevent African Americans from voting.26
But by the time Shelby was decided in 2013, the Court believed that things had “changed dramatically.”27 Chief Justice Roberts argued that, in covered jurisdictions, “voter turnout and registration rates now approach parity.”28 Since the coverage formula had not been updated to reflect “current burdens” or “current needs,” the “disparate” treatment of covered jurisdictions was no longer justified and therefore unconstitutional.29
In doing so, the Court “eviscerated the preclearance section of the law, which offered voters the most protection.”30 Without a coverage formula in place, covered jurisdictions are free to enact restrictive voting policies—such as the Georgia legislation discussed above.
Prior to Shelby County, preclearance was successful in combating voting suppression and is still needed today.
In her dissent, Justice Ginsburg pointed out that the basis of the majority opinion only showed that the VRA worked. Over time, the VRA succeeded at “eliminating first-generation barriers to ballot access,” such as poll taxes.31 This led to the “dramatic changes in the realization of minority voting rights” that the majority argued now rendered the formula outdated.32
However, Justice Ginsburg pointed out that even through 2013, covered jurisdictions “continued to submit, in large numbers, proposed changes to voting laws that the Attorney General declined to approve, auguring that barriers to minority voting would quickly resurface were the preclearance remedy eliminated.”33 In what Justice Ginsburg calls “second-generation barriers,” these jurisdictions sought to suppress minority voters through racial gerrymandering, adopting at-large voting instead of district-by-district voting in municipalities, and “discriminatory annexation by incorporating majority-white areas into city limits.” Justice Ginsburg was concerned that if the preclearance requirement was rendered moot, covered jurisdictions would continue to undermine the VRA’s purpose.
One only needs to look to Texas for support of Justice Ginsburg’s concern. Texas and its subdivisions have tried to employ all of these second-generation barriers over time.34 Following the Shelby County opinion, Texas immediately moved to put in place a “voter ID law” which unfairly burdens voters of color, women, and older voters.35 Other states have employed similar tactics to suppress votes—Georgia being a prime example.36 These once-covered jurisdictions have proved that the preclearance portion of the VRA is needed to prevent voter suppression.
How the John Lewis Voting Rights Advancement Act addresses the constitutionality of the coverage formula.
In July 2020, Senator Leahy—along with 46 other co-sponsors—filed the John Lewis Voting Rights Advancement Act, which seeks to create a new coverage formula in response to the Shelby County decision.37 The bill would amend the VRA’s coverage formula to meet the “current burdens” and “current needs” standard discussed by the Shelby County majority opinion.
First, the legislation would make preclearance apply statewide for any State where:
- 15 or more voting rights violations occurred in the State during the previous 25 years; or
- Ten or more voting rights violations occurred within the previous 25 years, and the State itself committed at least one of them.38
The term “voting rights violations” in the legislation would include any violations of the 14th or 15th Amendments, violations of any provisions of the legislation itself, or any violation of federal law that “prohibits discrimination in voting on the basis of race, color, or membership in a language minority group.”39
Similarly, the preclearance requirement would also apply to any political subdivision “during a calendar year if three or more voting rights violations occurred in the subdivision during the previous 25 years.”40 This change creates a rolling basis for which the preclearance requirement will apply. In other words, it will continually move to meet the “current needs” without further amendment by Congress.
Second, if a state or subdivision is covered by preclearance, the applicable period is limited to 10 years.41 Thus, unlike the formula considered by Shelby County, the applicable time will automatically expire if the jurisdiction complies with the above. And unlike the prior formula, the legislation provides that a jurisdiction can come out of preclearance coverage if it establishes a clean record.42
The Act proposed to make several other much-needed reforms to the VRA. But the above-listed changes to the preclearance coverage formula would address the Supreme Court’s basis for finding the original formula unconstitutional. This would allow the federal government to keep enforcing the VRA against the “second-generation barriers” discussed by Justice Ginsburg. Simply, enacting the John Lewis Voting Rights Act would strengthen our democracy and ensure that the right to vote remains fundamental.
Brandon W. Maxey is an attorney with Mayer LLP in Dallas, Texas. Brandon has extensive political campaign experience on the presidential and statewide level, where he focuses on voter protection issues and advocacy.
1 U.S. Const. amend. XV.
2 U.S. Const. amend. XIV.
3 U.S. Const. amend. XXVI (stating that the right to vote for citizens “who are eighteen years of age or older….shall not be denied or abridged. . . on account of age.”).
4 U.S. Const. amend. XXVI.
5 See South Carolina v. Katzenbach, 383 U.S. 301, 307-08 (1966); Elizabeth Resendez, In the aftermath of Shelby County: an analysis on why Texas should be required to pre-clear all voting changes, 17 St. Mary’s L. Rev. & Soc. Just. 1, at *2 (2015).
6 52 U.S.C. § 10301 (formerly cited as 42 U.S.C. § 1973).
7 Katzenbach 383 U.S. at 308.
8 See Resendez at *2-3 (detailing the history of the VRA).
9 Shelby County v. Holder, 570 U.S. 529, 548 (2013).
10 See id. at 529 (discussing the framework of the VRA).
11 Id. at 537.
12 Peter W. Stevenson, Expand access? A historic restriction? What the Georgia voting law really does, The Washington Post (Apr. 3, 2021), accessed at: The Georgia voting law explained: Why Republicans insist it ‘expands access’ - The Washington Post.
14 John Lewis Voting Rights Advancement Act, S. 4263, 116th Cong. (2020).
15 Shelby County, 570 U.S. at 537.
16 Id. at 538.
17 Id. 538-39.
18 Id. at 539.
19 Id. at 540.
20 Id. at 556-57.
21 U.S. Const. art. VI, cl. 2.
22 U.S. Const. amend. X.
23 Shelby County, 570 U.S. at 543.
24 Id. at 544 (internal citations omitted).
26 Id. at 545.
29 Id. at 550 – 557.
30 Resendez, at *4.
31 Shelby County, 570 U.S. at 561-65 (Ginsburg, J., dissent).
32 Id. at 563.
33 Id. (internal citations omitted).
34 See generally Nina Perales, Voting Rights in Texas: 1982-2006, 17. S. Cal. Rev. L. & Soc. Just. 713 (2008).
35 See Resendez, at *16 (giving explanation of Texas’ voter identification law and is discriminatory effect); see also Crawford v. Marion County Election Bd., 553 U.S. 181, 209 (2008)(Souter J. Dissent)(discussing the burdens put on voters by photo identification requirements).
36 For example, Georgia uses a “use it or lose it” registration cancellation law that purges voters from the rolls, which has led to lawsuits claiming that it has inaccurately thrown young, poor, and people of color off the voting rolls. See, e.g., Fair Fight Action, Inc., et al v. Raffensperger, Cause No. 1:18-cv-05391-SCJ, In the U.S. District Court for the Northern District of Georgia, Atlanta Division.
37 John Lewis Voting Rights Advancement Act, S. 4263, 116th Cong. (2020).
38 Id. at pg. 8.
39 Id. at pg. 7.
40 Id. at pg. 8.
41 Id. at pg. 9.