7 Years without the Voting Rights Act
About us: Progressive Turnout Project (PTP) is the largest grassroots-funded field organization in the country. In the year since we published a version of this post, attacks on American’s voting rights have only gotten more brazen. Here’s the latest on what we’re up against — and how we fix it.
It’s always been a battle to ensure the right to vote. In 2013, the Supreme Court disarmed the American people.
The Roberts Court’s 5–4 ruling in Shelby County v. Holder disenfranchised millions of U.S. voters by invalidating a key part of the Voting Rights Act. And seven years later, we continue to see the impact of this decision.
The Voting Rights Act worked
The 15th Amendment guaranteed the right to vote regardless of race or color, but it was an empty promise: Congress didn’t step up to enforce that protection for nearly a century. Finally, in 1965, civil rights demonstrations forced President Johnson to act.
Under the Voting Rights Act, jurisdictions with a history of voting rights violations — like Shelby County and the rest of Alabama — required federal approval for any new laws or rules affecting elections. This provision is known as preclearance. Justice Ruth Bader Ginsburg, in her Shelby County dissent, explained why that was so important:
“Early attempts to cope with this vile infection resembled battling the Hydra. Whenever one form of voting discrimination was identified and prohibited, others sprang up in its place.”
In other words, preclearance allowed the Justice Department to stay one step ahead of states’ efforts to suppress the vote.
And it worked: in Mississippi, black voter registration rates jumped from 7% in 1965 to 60% in 1967, and the gap in registrations between white and black voters continued to close.
Until we got a court, and a chief justice, hostile to voting rights.
Shelby County was wrongly decided
In Shelby County, the formula used to determine which jurisdictions were subject to preclearance was ruled unconstitutional. In one fell swoop, the most powerful part of the Voting Rights Act — the weapon that finally killed the Hydra — was gone.
The majority said the formula was outdated, even though Congress had reauthorized it only seven years earlier. Roberts’ opinion also made the absurd argument that, because voting discrimination had decreased under preclearance, preclearance was no longer needed.
Justice Ruth Bader Ginsburg put it best in her dissent: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
It’s now clearer than ever that Ginsburg was right. Since 2013, without the Voting Rights Act to stop them, states have:
- passed discriminatory voter ID laws
- closed hundreds of polling places
- criminalized voter registration drives
- purged voters from the rolls
In the past year alone, we have seen blatant instances of voter suppression that would have been prevented if the Court had not gutted the Voting Rights Act seven years ago.
Just this month in Georgia — a state previously subject to preclearance — voters in majority Black counties experienced hours long wait times, malfunctioning voting machines, and a shortage of provisional ballots due to a confluence of willful disenfranchisement, incompetence, and the coronavirus crisis.
In Florida, another state once protected by preclearance, Republican lawmakers attempted to implement a modern-day poll tax after voters overwhelmingly approved a ballot measure to restore the voting rights of people with felony convictions who have served their sentences.
Even some states not previously covered by preclearance have engaged in obvious voter suppression in the past year, too — highlighting the need for Congress to update the Voting Rights Act.
In Wisconsin, voters were forced to brave long lines, closed polling locations, and a pandemic in order to cast their vote after a 5–4 conservative Supreme Court majority refused to allow ballots postmarked after the election date to be counted.
To their credit, some states have worked in the other direction, too — for example, nineteen states have Automatic Voter Registration, and many states have expanded access to mail in voting in the wake of the coronavirus pandemic.
But voting rights should not — must not — depend on where you live. This is Congress’s problem to solve, and the next step is clear.
How we fix it
Chief Justice Roberts even wrote the solution in his opinion itself: “We issue no holding on [preclearance] itself, only on the coverage formula. Congress may draft another formula based on current conditions.”
Last year, the Democratic-controlled House of Representatives passed H.R. 4, the Voting Rights Advancement Act, to modernize the preclearance formula.
Only one Republican voted for it. And now, for over six months, H.R. 4 has been sitting on Mitch McConnell’s desk.
The way forward is clear: We can make the Voting Rights Act law again — by getting to work to elect Democrats to take back the Senate and the White House, so that we can finally enact this crucial piece of voting rights legislation.
Not one more year.
