About the Author: Hope Kashatus is a second year evening law student at American University- Washington College of Law. Hope graduated from Boston University and plans to work in advancing civil and human rights after graduating law school.
Civil rights hero John Lewis wrote “[t]he vote is the most powerful nonviolent change agent you have in a democratic society. You must use it because it is not guaranteed. You can lose it.”[1] Congressman Lewis, among numerous other civil rights leaders, engaged in a dedicated campaign of nonviolent activism that led to the passage of the Voting Rights Act of 1965 (VRA).[2] This landmark legislation has since provided critical mechanisms to enforce the right that is “preservative of all rights.”[3] However, in 2013, the U.S. Supreme Court weakened a key provision of the VRA by invalidating the § 4(b) coverage formula that defined states and political subdivisions subject to § 5 preclearance.[4] According to this formula, states and political subdivisions that had to preclear changes to their voting laws were those that maintained voting tests or devices and had less than 50% voting age population registration or participation as of 1972.[5] Congress now seeks to restore the strength of § 5 preclearance through the John Lewis Voting Rights Advancement Act.[6]
In Shelby County v. Holder, the Court struck down the § 4(b) coverage formula for violating “equal state sovereignty” and failing to show that its disparate geographic coverage was sufficiently related to the problem that it targeted.[7] Chief Justice Roberts, writing for the majority, faulted Congress for not significantly altering the formula in its 2006 VRA reauthorization from when it was last updated in 1975.[8] The Court held that without such an update, the intrusion of preclearance requirements on states’ rights to equal sovereignty was no longer justified.[9] While the Court nominally acknowledged the expansive record that Congress established leading up to the 2006 reauthorization, it declined to focus on the demonstrated persistence of “second-generation” voter suppression because, Roberts reasoned, this was not the basis of the § 4(b) formula it reauthorized.[10]
Predictably, after Shelby, states and political subdivisions formerly subject to preclearance quickly enacted previously barred laws restricting voting rights.[11] Only some of these changes have been successfully challenged in court, such as in North Carolina where the Fourth Circuit found that the state “target[ed] African American voters with almost surgical precision.”[12] The heavy cost, both in time and money, that it takes to resolve these cases demonstrates the need for § 5 preclearance enforcement.[13] Congress included § 5 in the VRA because it recognized that while such costly litigation was pending in the courts, those who sought to suppress minority voters could tailor their laws to evade enforcement, gain the advantage of incumbency, and reap the benefits from elections before the case was settled.[14] With leadership from civil and voting rights advocates, Congress has sought to restore this necessary provision.[15]
A new formula, designed to address Roberts’ concern in Shelby by identifying states and political subdivisions that have continued to engage in a specified number of discriminatory violations in the previous 25 years, is one of several notable provisions that would strengthen voting protections in the John Lewis Voting Rights Advancement Act.[16] While this legislation has already passed the House, time is quickly running out in the Senate, and despite overwhelming bipartisan support for past reauthorizations, current partisan divides make passage extremely unlikely.[17] But, even if this legislation is not enacted in the current Congress, it marks an essential recommitment to preserving voting rights that honors the legacy of civil rights leaders like Congressman Lewis that Congressional Democrats are likely to prioritize in future sessions.[18]
[1] John Lewis, Together, You Can Redeem the Soul of our Nation, N.Y. Times (July 30, 2020), https://www.nytimes.com/2020/07/30/opinion/john-lewis-civil-rights-america.html.
[2] Maya Rhodan, The Voting Rights Act at 50: How the Law Came to Be, Time, (Aug. 6, 2015) https://time.com/3985603/voting-rights-act-1965-history/.
[3] Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).
[4] Shelby County v. Holder, 133 S. Ct. 2612, 2618 (2013). Preclearance requires covered states and political subdivisions to submit proposed changes to their voting laws for administrative review to the U.S. Department of Justice or the U.S. District Court for the District of Columbia to ensure they would have neither a discriminatory purpose or effect on voting rights. U.S. Dep’t of Justice, About Section 5 of the Voting Rights Act, https://www.justice.gov/crt/about-section-5-voting-rights-act#:~:text=Section%205%20was%20designed%20to,applicable%20only%20to%20certain%20states.
[5] U.S. Dep’t of Justice, Section 4 of the Voting Rights Act, https://www.justice.gov/crt/section-4-voting-rights-act.
[6] H.R. 4, 116th Cong. (1st Sess. 2019); S. 4263, 116th Cong. (2d Sess. 2020).
[7] Shelby County v. Holder, 133 S. Ct. at 2622.
[8] This formula continued to rely on data about the prevalence of literacy tests and low voter turnout and registration rates in the 1960s and 1970s while these metrics had seen substantial improvement. Shelby County v. Holder, 133 S. Ct. at 2620. The substantial improvement, Justice Ginsburg argued in her dissent, was due to the deterrent effect of § 5 preclearance. Shelby County v. Holder, 133 S. Ct. at 2639 (Ginsburg, J., dissenting).
[9] Shelby County v. Holder, 133 S. Ct. at 2622.
[10] Id. at 2629.
[11] See U.S. Comm’n on Civil Rights, An Assessment of Minority Voting Rights Access in the United States (2018), https://www.usccr.gov/pubs/2018/Minority_Voting_Access_2018.pdf (reporting that “at least 23 states have enacted newly restrictive statewide voter laws since the Shelby County decision.”).
[12]North Carolina State Conference of the NAACP v. McCrory, 831 F.3d 204, 214.
[13] The History and Enf’t of the Voting Rights Act of 1965 Before the Subcomm. on Civil Liberties, the Constitution, Gov’t Oversight, Civil Rights, and Civil Liberties of the House Comm. on the Judiciary, 116th Cong. 11 (2019) (statement of Catherine Lhamon, Chair, U.S. Comm’n on Civil Rights).
[14] Shelby County v. Holder. at 2633–34, 2240 (Ginsburg, J., dissenting).
[15] Support H.R. 4, Voting Rights Advancement Act, Leadership Council on Civil & Human Rights (Dec. 4, 2019) https://civilrights.org/resource/support-h-r-4-voting-rights-advancement-act/.
[16] 165 Cong. Rec. H9297–9349 (daily ed. Dec. 6, 2019) (statement of Rep. Nadler). Violations include enacting laws that infringe upon 14th or 15th Amendment rights, transgress the VRA, were objected to previously under preclearance, or led to a consent decree, settlement, or other agreement for violating the VRA, the 14th Amendment, or the 15th Amendment. H.R. 4; S. 4263.
[17] Id. (noting the lack of bipartisan support for S. 4263 and H.R. 4).
[18] See Elaine Godfrey, “This Is the Future That Liberals Want,” The Atlantic (September 17, 2020), https://www.theatlantic.com/politics/archive/2020/09/democrats-win-senate-white-house/616370/.
