One year ago, the U.S. Supreme Court struck down Section 4(b) of the Voting Rights Act, gutting the preclearance requirements of the Act. The Court’s main criticism of Section 4(b) was that its coverage formula, used to determine which states and local jurisdictions needed preclearance for voting changes per Section 5, was out of date. Fortunately, the Court invited Congress to step in and enact an updated coverage formula. An updated, modern coverage formula is necessary to allow the Voting Rights Act to continue to combat discrimination before a person’s rights are actually violated.
Despite arguments to the contrary, racial discrimination in voting was alive and well before the Court’s calamitous decision and continues to occur today. The Leadership Conference on Civil and Human Rights just published a report that counted 148 instances of voting discrimination since 2000. The report, The Persistent Challenge of Voting Discrimination: A Study of Recent Voting Rights Violations by State, illustrates that even 50 years after Freedom Summer and the passage of the Civil Rights Act of 1964, racial discrimination in voting is an ongoing problem and is present across the country, particularly in local elections, and new methods of voting discrimination continue to be developed.
The efforts of groups like the Leadership Conference highlight the need for a modern Voting Rights Act in order to protect one of our democracy’s most fundamental rights.
Fittingly, on the one-year anniversary of the Supreme Court’s decision in Shelby County—and not a day too soon—the Senate Judiciary Committee held the first hearing on the bipartisan Voting Rights Amendment Act (VRAA). The bill was introduced in January, and while the Senate is finally moving forward, the House of Representatives has yet to even hold a hearing. The Senate bill (S. 1945), like its companion House bill, includes an updated coverage formula, which would subject jurisdictions to preclearance based solely on recent violations of federal voting laws.
Before yesterday’s Senate committee hearing began, those hoping to get a seat in the hearing room lined the hallway of the Dirksen Senate Office Building. The two-and-a-half hour full-committee meeting took place before a full, diverse audience. Thirteen of the 18 members of the Judiciary Committee attended the hearing, which featured testimony from Sylvia Garcia, State Senator from Texas; Michael Carvin, a Partner at Jones Day; Reverend Dr. Francys Johnson, State President of the Georgia NAACP; Dr. Abigail Thernstrom, of the American Enterprise Institute; and Sherrilyn Ifill, President and Director-Counsel of the NAACP Legal Defense and Educational Fund, Inc.
Senator Leahy opened the Committee meeting with remarks that stressed the one year anniversary of the Shelby County decision, explained that Congress has to follow the Court’s decision, but that Congress is authorized to make changes. He emphasized that it is time for Congress to follow the nearly 50-year history of the Voting Rights Act and subsequent reauthorizations and pass a bipartisan response to Shelby County. He referenced reports from the Brennan Center and the Leadership Conference to affirm Chief Justice Roberts’s statement in his Shelby opinion that “voting discrimination still exists; no one doubts that.” In spite of the fact that no Republican Senators have endorsed the Voting Rights Amendment Act—even Senators who supported the original Voting Rights Act in 1965—Senator Leahy’s statements subtly conveyed a feeling of hope: maybe the hope that doing the right thing would win out over doing the partisan thing.
Following Senator Leahy’s opening statement, each witness gave prepared testimony, and then the members of the Committee had time to offer comments and/or question any of the witnesses. While it was no surprise that the Democrats and Republicans disagreed, the points on which they disagreed and the manner in which they did was somewhat unsettling.
One of the main points of contention dealt with whether Section 5 preclearance is an effective tool for combating voting discrimination today. The Republican Senators and their witnesses argued that Section 5’s preclearance requirements are no longer needed because there are other avenues for enforcement. Senator Grassley commented that the current Voting Rights Act is strongly enforced and is protecting voters because litigation is being brought under Sections 2 and 3. The problem with this argument is that the purpose of preclearance was to prevent discriminatory practices from taking effect without federal review in the first place. This cannot be achieved through Sections 2 or 3. Without the ability to prevent discriminatory practices—such as changes in polling locations, redistricting, and voter identification laws—from being implemented, those who suffer discrimination have limited remedies available to them.
More surprisingly, the Republican Senators and their witnesses argued that the updated, modern coverage formula in the VRAA targeted specific states, claiming that only four states would fall under the preclearance requirements and that those states bear a presumption of guilt, which they must disprove. This is simply untrue. Contrary to their position, the new coverage formula applies nationwide. Any state or political jurisdiction could be subject to preclearance if it reached the mandated threshold of federal violations during the preceding 15 years. The formula is rolling and updated annually; any state at any time could become subject to preclearance requirements. The four states that would be subject to preclearance upon passage of the VRAA would be for the simple reason that they violated voting rights laws five times in the past 15 years.
The Senate Judiciary Committee took the first step yesterday to moving the Voting Rights Amendment Act forward. The Act would implement an updated, appropriate coverage formula essential to protecting the fundamental right to vote. Now, the Committee should proceed to a favorable vote and send the bill to the floor. The House should quickly move the Voting Rights Amendment Act as well.
Photo by Emily Rouleau.
Emily Rouleau is a legal intern with Project Vote.