By Natalie Knight
AFJ Summer Associate
|Rep. John Lewis|
In Selma, Alabama in 1965, John Lewis led a group of protesters across a bridge where they were attacked by state troopers. The story, images, and videos from that attack became a powerful force for the eventual passage of the original Voting Rights Act of 1965 (VRA). The work of these peaceful protestors and decades of bipartisan cooperation to renew the VRA were unraveled when the conservative bloc of the Supreme Court gutted Section 4 of the VRA in its recent decision in Shelby County v. Holder. This past Wednesday, Representative John Lewis, D-Ga., came before the Senate Judiciary Committee for a hearing that acknowledged the long struggle for voting rights in which Rep. Lewis played such an important role: “From Selma to Shelby County: Working Together to Restore the Protections of the Voting Rights Act.”
Rep. Lewis recounted his personal involvement in the voting rights movement before turning to the grim reality that the Supreme Court’s decision in Shelby County has already had a profound impact on the right to vote. In Shelby County, the five conservative justices held that the latest reauthorization of the VRA impermissibly relied on old data to decide which regions had to get approval from the federal government (a process called “preclearance”) before changing voting policies so that the federal government could ensure they were not disenfranchising minority communities (as detailed in Section 5 of the VRA). At the hearing, Sen. Chuck Grassley, R-Iowa, echoed the decision by Chief Justice Roberts, recounting the numerous improvements in equality for African Americans and other minority populations since the original passage of the VRA as evidence that the VRA was outdated.
But Rep. Lewis explained that while progress has been made, the reaction to the Shelby decision showed just how crucial VRA still is for protecting voters’ rights. “Only hours after the decision was announced by the Supreme Court—before the ink was even dry—states began to put into force efforts to suppress people’s voting rights,” he testified. Senator Durbin noted that there is absolutely no evidence of the alleged voter fraud that has been used to justify voter ID laws and other voting restrictions that have been advanced by the conservative American Legislative Exchange Council and enacted by certain states, especially those that were until recently covered by Section 5 of the VRA.
Rep. James Sensenbrenner, Jr., R-Wis., who was chairman of the House Judiciary Committee during the last reauthorization of the VRA, explained that “Congress amassed a legislative record that totaled more than 15,000 pages documenting widespread evidence of intentional discrimination” and that the Shelby decision “disregarded years of work by Congress.”
In contrast, Michael Carvin, an attorney at the corporate law firm Jones Day who has represented states in their attempts to preserve burdensome voting restrictions, stated that while Congress gathered 15,000 pages of evidence, they didn’t use it when reauthorizing the VRA but instead used the same formula from 1965 to decide which regions were subject to preclearance under Section 5 of the VRA. Apparently, Carvin did not allow for the possibility that, in those 15,000 pages, Congress found that the regions with the greatest problems in ensuring equal voting rights for all Americans in 1965 were highly correlated with those that had the greatest problems in 2006. Congress also included a provision that allowed areas covered by the formula to be “bailed out” from the preclearance requirement when they could show they didn’t have discriminatory practices. Since then, some jurisdictions have successfully bailed out of the preclearance requirement of the VRA.
Carvin went on to explain that Section 2 of the VRA, which is still in effect, allows for lawsuits after discriminatory laws and practices have already been adopted and is sufficient to protect voters’ rights. But Professor Justin Levitt, an expert in voting rights who teaches at Loyola Law School, noted the numerous ways in which Section 2 is insufficient. Bringing a lawsuit after discrimination has occurred often leaves in place those who were elected through illegal practices. Even if future elections are fair and open, those elected under the spurious procedures now have the benefit of incumbency. Additionally, a lawsuit is much more expensive than preclearance and places the initial cost on those who were discriminated against. Sometimes the data necessary to actually win in such a lawsuit may be nearly impossible or prohibitively burdensome to obtain. Because Section 2 lawsuits are so costly and because the damage has often been done by the time a lawsuit has ended, lawmakers are aware that many voter restrictions will simply go unchallenged. Thus, Section 2 fails to provide the deterrent effect which was achieved by having to first submit any proposed changes to the federal government. As Aventura, Florida Commissioner Luz Urbaez Weinberg (a Republican and the only Hispanic elected to her office) emphasized, “Section 5 has no peer.”
As the House and Senate work to create a new formula to reinvigorate the powerful protections of preclearance under Section 5, it is important to carefully consider what data might be used to create a law that protects the rights of all Americans to vote without fear of discrimination. Since preclearance prevented many laws that could have resulted in Section 2 lawsuits, Congress should look beyond these lawsuits for evidence of discriminatory practices. Since, as Commissioner Urbaez Weinberg explained, voter discrimination has gotten even “sneakier” in many areas that were not previously covered by Section 4, Congress should look at what new areas might need preclearance. Since in 2012, African Americans and Hispanics waited nearly twice as long to vote as whites, voter wait times may also be a critical indicator for preclearance.
We agree with Sen. Grassley that “any legislative fix [to restore Section 5] should not threaten common sense measures to ensure the integrity of voting.” But Sen. Grassley was referring to a proposal to exempt Voter ID laws from scrutiny. Common sense dictates that if thousands of pages of evidence of voter discrimination were necessary to reauthorize the Voting Rights Act then something more than unsubstantiated claims of voter fraud are necessary to permit restrictive voter identification laws. I hope Senator Grassley and his colleagues will not delay the restoration of the VRA with fictions of voter fraud in light of the urgent, documented need to protect voting rights.
As Congress considers how to reinvigorate Section 5 by creating a new preclearance formula, we hope all members of Congress will remember the words of Commissioner Urbaez Weinberg: “The Voting Rights Act is not a partisan issue; it is an American issue.”
Read more about the Voting Rights Act, and the arguments in Shelby County v. Holder.