By Ali Boyd
Associate Editor, Vol. 22
In the midst of a nationwide battle for civil rights, President Lyndon B. Johnson called on Congress to create one of the most expansive protections of voting rights ever seen. The result, the Voting Rights Act of 1965 (VRA), sought to protect against racialized voter disenfranchisement. One of the Act’s most important elements—a preclearance requirement—could be found in Section 5. Preclearance required certain jurisdictions to refrain from implementing any new provisions affecting voting until either the Attorney General or the United States District Court for the District of Columbia determined that the change did not have a discriminatory purpose or effect. However, not all jurisdictions would be subject to the preclearance requirement. Section 4(b) of the VRA laid out a formula to determine which U.S. jurisdictions would be covered by the Act. The only jurisdictions required to submit to Section 5 preclearance were those that, at the time of the November 1972 election, 1) maintained a prohibited test or device as a condition of registering to vote or voting and 2) had a voting-age population of which less than 50% either were registered to vote or actually voted in that year’s presidential election. The purpose of the formula was clear: to get at the worst historic offenders of voting discrimination.
For almost fifty years, the preclearance requirement remained an effective way of increasing voter registration and participation among minority groups. However, on June 25, 2013, the Supreme Court issued its ruling in Shelby County v. Holder, striking down the coverage formula of Section 4(b) of the VRA, and thereby effectively eliminating the preclearance requirement of Section 5.
2016 marked the first Presidential election in more than five decades without the full enforcement of the Voting Rights Act, and states seem to have taken full advantage of their newfound freedom. The Brennan Center for Justice notes that during the 2016 election, 14 states enacted restrictive voting laws for the first time. With the surprising results of the election, Democrats are left wondering whether these new restrictive voting laws may have had a determinative effect on the outcome. Democrats are not crazy to think that they would be the party most likely burdened by these laws. Studies show that when voting is restricted, it typically affects minority voters disproportionately and these groups historically vote Democratic. The anger of many has been directed at the Shelby County decision itself. However, this anger, at least as far as the Presidential election is concerned, may be misdirected.
It is unlikely that even a fully enforced version of the Voting Rights Act in its pre-Shelby County form would have altered the outcome of the Presidential Election. Of the fourteen states that enacted new restrictive voting laws this election, only six previously fell under the coverage formula of Section 4(b) of the VRA – Virginia, South Carolina, Alabama, Mississippi, Texas, and Arizona. However, based on historical voting records, most of these states have voted strongly Republican in every Presidential election since 1980. Virginia is the lone exception, which awarded its electors to Democratic candidate Hillary Clinton this election regardless. The closest case is presented in Arizona, where tabulations at the time of this writing show Donald Trump winning the popular vote by four percentage points and around 85,000 votes. While it may be impossible to tell how many Democratic voters would have turned out were it not for Arizona’s new restrictive voting laws, it is safe to say that even Arizona’s eleven electoral votes would not have been enough to tip the scales in Clinton’s favor.
Unfortunately, this trend of restrictive voting laws continues to spread across the nation, even in states that were not previously covered by Section 4(b) of the Voting Rights Act. Across the country, nearly half of states have passed laws that make it harder to register to vote, cut back on early voting, and require strict forms of government-issued ID to cast a ballot that millions of otherwise-eligible voters don’t have. In 2016, new laws resulted in 868 polling places being closed, forcing some voters to travel as far as 25 miles to vote. As Rolling Stone pointed out, states with restrictive voting laws “comprise 189 electoral votes – nearly half of the Electoral College votes needed to win the presidency – and include crucial swing states like Ohio, Wisconsin and Virginia.” These are the states that were far more likely to have impacted the results of the recent Presidential election. For example, in Wisconsin, a state that proved crucial to Donald Trump’s upset victory, the 41,000 vote decline in turnout was greatest in areas where the lack of IDs was common.
As it is becoming more common for states across the nation to enact potentially discriminatory voting restrictions, a mere restoration of the coverage formula of Section 4(b) hardly seems like enough. After all, the coverage formula struck down by Shelby County would not require preclearance for any of the recent laws passed in places like Wisconsin, Ohio, or Indiana. However, voting rights activists are not left without options. The Court’s biggest problem with the coverage formula considered in Shelby County was that it was based on data from 1972. Therefore, an updated formula may just be enough to withstand the scrutiny of the Court. One solution would be to enact a new version of Section 4(b), such as that proposed by Jim Sensenbrenner, a Republican member of the U.S. House of Representatives from Wisconsin, in the Voting Rights Amendment Act of 2015. This proposed coverage formula would extend the preclearance requirement to all jurisdictions nationwide, with the ability to be freed from coverage once their pattern of discrimination in voting ceases. Though the legislation has more than 100 co-sponsors, Congress still has not acted on it, perhaps because many think this would be beyond Congress’s power as it could be considered disproportionate and not congruent to the problem. Another solution would be to enact a new formula similar to that of Section 4(b), but updated to reflect modern data rather than using evidence of discrimination from the 1970s. In an ideal world, it would encompass states such as Wisconsin, Ohio, and Indiana that have enacted new restrictive voting laws but were not previously required to submit to preclearance, while simultaneously meeting the Court’s requirements of congruence and proportionality.
In the absence of Congressional action, voting rights advocates will have to rely on individual litigation to fight back new restrictive voting rights laws as they pop up. This can be done based on a variety of claims – Section 2 of the VRA, Equal Protection, the 15th Amendment, as well as the one-person, one-vote doctrine. However, individual litigation is unlikely to have as wide an impact as updated legislation. While litigation certainly should not be abandoned, Democrats moving forward should focus their efforts on pushing an updated coverage formula to the VRA through Congress. As Sensenbrenner puts it, “Without a modernized Voting Rights Act, there’s no such things as an honest election.”