The Voting Rights Act

The Fifteenth Amendment to the US Constitution guarantees that "[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude." Ratified in 1870 as one of the so-called "Reconstruction Amendments," it aimed to alleviate the systemic suppression of African-American voters in the aftermath of the US Civil War. While the amendment and many other pieces of federal and state legislation initially succeeded at protecting the suffrage of African-American voters during Reconstruction, US President Rutherford B. Hayes' order to withdraw federal troops from the South in 1877 hampered enforcement. Following the return of "home rule" in the South, many of the southern states passed Jim Crow laws that sought to disenfranchise African-American voters through the use of literacy tests and poll taxes. Widespread voter intimidation was also prevalent.

The growing fervor of the civil rights movement during the 1960s underscored the deficiencies of existing federal anti-discrimination provisions. Following violent civil rights protests in the US during the spring and summer of 1965, particularly in Selma, Alabama, US President Lyndon B. Johnson called on Congress to adopt meaningful voting rights legislation in a landmark address before a joint session of the US Congress on March 15, 1965. Two days later, President Johnson introduced legislation which would eventually become the VRA after its swift passage in both houses of Congress. President Johnson signed the bill into law on August 6, 1965, approximately 95 years after the ratification of the Nineteenth Amendment.

The VRA has many provisions, but emphasis is typically placed on Sections 2 and 5.

Section 2

VRA's Section 2, which comports closely with the language of the Fifteenth Amendment, created a nationwide prohibition on the use of discrimination to deny individuals the right to vote. Section 2 is a permanent provision and does not require periodic congressional approval. It was further amended in 1982 to prohibit any voting procedure that had a discriminatory result, including the perennial redrawing of voting district lines. However, the US Supreme Court ruled in Bartlett v. Strickland that the VRA does not require voting district lines to be drawn favorably towards minority candidates if the minority in question represents less than 50 percent of the population in that district.

Section 5

Section 5 of the VRA, which creates a scheme of federal anti-discrimination enforcement that is typically referred to as "preclearance," is the more controversial and substantial section. The section requires that the US Department of Justice (DOJ) "preclear" all attempts to change "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting" in any jurisdiction which is considered "covered." Although all jurisdictions which had fewer than 50 percent of the eligible population voting were considered "covered" under the original law, jurisdictions (including cities and counties) which had a history of discrimination or were found to be in violation of Section 2 were also included. Jurisdictions seeking preclearance have the burden of proof to establish that proposed changes to election guidelines have neither the purpose nor effect of discriminating based on race or a person's status as the member of a "language minority group," including "persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage." The preclearance enforcement scheme was upheld by the US Supreme Court in their 1966 decision, South Carolina v. Katzenbach.

Entire states currently considered "covered" under the VRA include: Alabama, Alaska, Arizona, Louisiana, Mississippi, South Carolina and Texas. Additionally, certain cities, counties and townships in California, Florida, Georgia, Michigan, New Hampshire, New York, North Carolina, South Dakota and Virginia are also considered "covered." The VRA also includes a provision whereby covered jurisdictions may "bail out" of Section 5 by seeking a declaratory judgment from the US District Court for the District of Columbia. The 1982 amendments to the VRA established that jurisdictions must demonstrate nondiscriminatory behavior in the decade prior to the filing with the district court and that, while the action is pending, the jurisdiction has taken affirmative steps to improve minority voting opportunities. Individual cities and jurisdictions may "bail out" separate from their home state; currently only 14 counties in Virginia and the cities of Kings Mountain, North Carolina and Sandy Springs, Georgia have successfully "bailed out" of Section 5.

Contemporary Issues

The VRA was renewed with near legislative unanimity on July 26, 2006, despite attempts by southern Republican lawmakers to amend or repeal the Act based on concerns over excessive federal oversight. More recently, Section 5 of the VRA has been the source of renewed controversy, as lawsuits in jurisdictions including Texas, Alaska and South Carolina have sought to invalidate the preclearance enforcement scheme. On February 27, 2013, the US Supreme Court held oral arguments in the case of Shelby County v. Holder, questioning whether Congress exceeded its constitutional authority by renewing Section 5 of the VRA. Justice Antonin Scalia was particularly vocal in questioning whether political popularity of the provision rather than constitutional protection of vulnerable populations motivated continued reauthorization of Section 5.

On June 25, 2013, the Supreme Court issued an opinion [PDF] striking down Section 4 of the VRA, which defined the formula for which jurisdictions are covered under Section 5. The Court upheld Section 5 and said Congress could constitutionally enact a new formula.

 

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