It is critical that the John Lewis Voting Rights Advancement Act (JLVRAA) be passed and furthermore, that the Department of Justice (DoJ) provide adequate resources, staff, money, and freedom for the Voting Rights Section (VRS, the office that enforces preclearance) to enforce the new provision free of political influence to protect the universal right to vote and in particular to void the discriminatory laws currently being passed in a national campaign by state GOP legislators to hinder minority access to the polls.
The 2013 Shelby v. Holder decision voided the Section 4 coverage formula that determined which states and jurisdictions were covered by the Section 5 preclearance provision which required political jurisdictions with histories of voting rights abuses to pre-clear changes in election laws, practices, and procedures with either the District of Columbia Circuit Court or the Department of Justice. Pre-clearance kept jurisdictions from implementing discriminatory laws and procedures. Although the reauthorization of the preclearance framework enjoyed overwhelming bipartisan support at reauthorization in 2006, conservatives submitted amicus curiae briefs opposing the law in Shelby. Chief Justice John Roberts applied several of the amici arguments in the decision that Section 4(b) violated the “equal sovereignty of states” by treating states differently based on “40 year old facts that have no relationship the present day,” and that “[r]egardless of how we look at the record no one can fairly say that it shows anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that faced Congress in 1965” [when the Voting Rights Act was passed.” Justice Antonin Scalia was correct when he surmised that Republicans who voted for renewal, were worried about political backlash, they did not support voting rights. We need JLVRAA because it will replace the Section 4 formula and reinvigorate the Section 5 preclearance provision so that voters can escape the detriment to their voting rights by provisions passed in 2021.
Justice Roberts Shelby analysis was incorrect. Voter discrimination was an entrenched issue in 2013 and the Voting Rights Act (VRA) preclearance provision did much to ward against abuses. A look at the record on state voter discrimination reveals that pervasive, flagrant, widespread and rampant discrimination against the voting rights of minority population were on the rise pre Shelby, in the form of voter ID and similar laws and post Shelby, these laws have proliferated. Data shows that from 1998 to 2013, the Civil Rights Division of the Justice Department blocked 86 voting law change submissions from state and local government entities. And according to a 2013 Brennan Center report, 31 submissions were blocked after the VRA’s re-authorization in 2006, which suggests there was no significant decrease in the period immediately prior to Shelby. Additionally, a raw accounting of blocked changes does not reflect the effectiveness of pre-clearance since many proposed changes to laws, procedures and practices are withdrawn or re-written after preclearance review. From 1999 to 2005, there were 264 proposed discriminatory changes that were withdrawn or altered after preclearance review by Department of Justice.
From 2013-2020, there was a significant increase in the numbers and types of state level laws that undermine the ability of minority populations to meaningfully affect election outcomes. Texas passed its previously blocked voter ID law just hours after the Shelby ruling, and other previously covered states (North Carolina, Alabama, Arizona, Florida, Mississippi, and Virginia) passed laws and implemented practices that would have previously required and likely been blocked by preclearance.
And in the aftermath of the 2020 election, things have gotten infinitely worse. In 2021, more than 360 restrictive bills have been introduced into state legislatures. The bills include restrictions on absentee voting/voting by mail, tightening voter ID laws, making it easier to purge voters from the rolls, making it harder to register and placing limits on early voting and access to precincts. The Republican party is engaged in a national campaign to introduce these bills in state legislatures. The most aggressive action has occurred in three previously covered states, Georgia, Texas and Arizona. Each state’s history includes rampant voting rights abuses encompassing a broad range of actions to deny Black, Latino and Native American equal access to voting.
The Georgia state legislature bombarded both houses of the state legislature with over 30 bills and amendments eventually merged into a 92 page omnibus bill. SB 202 includes a mix of restrictions on voting access, ranging from ban on issuing absentee ballot applications except by request, the addition of strict identification requirements for absentee voting, the virtual elimination of absentee drop boxes, a ban on provisional balloting in unassigned precincts, and extremely troubling the establishment of state legislative control over the State Election Board, demotion of the Secretary of State, and new ability to suspend election officials and take over local precincts. Right now Texas is on the verge of passing an omnibus bill. The two legislative chambers passed different versions of the bill which have to be resolved but both bills ban unsolicited mailing out of absentee ballot applications. In Arizona, there are 23 restrictive bills under consideration. In May, the state legislature passed the first of these bills, to remove people who have not voted at least once within a two-year period from the state’s Permanent Early Voter List (PEVL), which automatically generates ballots to qualified voters. Of the 100-200K voters expected to be purged, most will be Latino.
If the Shelby decision had affirmed the lower court rulings, and Section 4(b), Section 5 pre-clearance would have acted as check on the Georgia, Texas and Arizona legislatures and we would not have this problem.
Instead, large numbers of citizens believe that the 2020 elections were marred by massive fraud, and Republican legislators are leveraging that fear as a rationale to pass laws that deny, dilute, suppress and abridge voting rights. Thankfully, by only ruling on the Section 4(b) coverage formula, and not on Section 5, Shelby left open the possibility Congress could reinvigorate preclearance by revising the preclearance formula. This is exactly what the John Lewis Voting Rights Advancement Act (JLVRAA) does.[2] Under the JLVRRA all states and jurisdictions nationwide are “covered” for a period of 10 years if they have engaged in repeated violations, during the past 25 years.[3] The bill identifies a list of practices which warrant consideration for coverage including changes to the methods of elections, jurisdictional boundaries, redistricting changes, documentation/qualifications to vote, and reduction/consolidation/relocation of voting locations (the kinds of laws that we are seeing being passed right now).
JLVRAA enforcement must be aggressive, robust, free of political interference
But, the JLVRAA without more, in this hostile political environment, will not be enough. The law will have to be accompanied by changes to DOJ enforcement of preclearance. To manage submission from nationwide the VRS will have to be adequately staffed and resourced to be able to address preclearance issues and not be limited to jurisdictions that have the political clout to be recognized by the DOJ.
Despite its positive impact, the fact is that preclearance has never been enforced robustly, even under Democratic administrations. Preclearance review began in 1970 and the Nixon administration, which opposed the law, enforced it more energetically than any president thereafter. Republican presidents after Nixon all opposed the law and each increased the politicization of the VRS. Democratic presidents did not enforce the law much more robustly than Republican presidents. Even under administrations that are supportive of voting rights free of undo pressure, the Department of Justice only takes on a very small portion of cases. Less than 5% of voting rights cases involving racial minorities actually have the Department of Justice as a plaintiff. This means that most cases are brought by private parties and require people to find the financial and legal resources needed to pursue litigation, which can be considerable. Interference with state government under Section 5 was consistently low and never resulted in anything like a complete transfer of control of state voting laws to the federal government as some critics claimed.
As such, preclearance enforcement has provided negligible relief for small minority groups unable to garner sufficient political pressure. This has been a continuing problem for Native Americans. From 1973 to 1980, the Civil Rights Divisions included an Office of Indian Rights (OIR), later abolished under Reagan which provided some Section 5 enforcement to Indian Country, but numerous changes affective Natives have gone unreviewed. Between 1976 and 2006, South Dakota put into operation more than 600 election regulations affecting Todd and Shannon Counties, but only got pre-clearance for less than ten these failures to act resulted in substantial electoral dilution of Native voting clout.[4]
The passage of the JLVRAA is critical to democratic ballot casting in the United States because can provide the missing piece of the VRA that is currently prevents the federal government from acting as a check on state voter legislation. Preclearance works and it is clear that without the protection, democratic elections will be extremely difficult in 2022 and 2024. At the same time, the legislation will have to be enforced robustly. To be successful, the VRS will not be able to limit itself to cases that generate political pressure, and it will not be able to ignore small populations in parts of the county that are fare from the urban centers of power.
[2]The bill allows states that no longer have problematic voting law records to exit coverage after ten years and includes a number of other provisions that are unrelated to Sections 4(b) and 5. The most important of these would amend Section 2 to require states or political subdivisions provide polling places with the same pay and hours of operation on Indian lands when requested by tribes. It lists federal facilities on tribal lands that may be designated as polling places. It also covers requirements for the establishment of absentee ballot locations and early voting site on tribal lands.
[3] A state and all its political subdivisions would be covered if there had been at least 15 violations within the past 25 years or if there were at least 10 violations, including at least one that was committed by the state.
[4] There is some evidence showing that small political jurisdictions, which were covered by Section 5, found it much easier than larger ones to get away with not submitting changes for pre-clearance (Rodriguez, 2003: 808).