Eric Davis: 2020 is a voting rights opportunity
The Voting Rights Act of 1965 was signed into law by President Lyndon Johnson in August of that year, just a few months after the “Bloody Sunday” attack by Alabama police on voting rights marchers at the Edmund Pettus Bridge near Selma.
A major provision of the Voting Rights Act, found in Section 5, is called “preclearance.” State and local governments could not implement any changes in voting procedures without having them approved in advance by either the U.S. Department of Justice or the U.S. District Court in Washington, D.C. Section 5 preclearance applied to those jurisdictions defined by a “coverage formula” in Section 4(b) of the act.
The coverage formula initially applied in jurisdictions where literacy tests and other devices were used to restrict the number of registered voters to a small fraction of the voting-age population. In 1965, it covered all or parts of 11 states, most of them in the South. Later amendments refined the coverage formula, and some states were able to exempt themselves by eliminating practices that restricted voting.
By early this century, the formula covered all of Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia, parts of Florida and North Carolina, and scattered jurisdictions in other states.
The preclearance requirement and the coverage formula were upheld by the Supreme Court in 1966, the year after the Voting Rights Act was passed, and again in 1973, 1980 and 1999. In 2006, Congress reauthorized the Voting Rights Act for another 25 years, including the definition of the coverage formula that had last been amended in 1975.
In the 2013 case of Shelby County, Alabama v. Holder, the Supreme Court ruled the coverage formula in Section 4(b) of the Voting Rights Act to be unconstitutional. In a 5-to-4 decision written by Chief Justice Roberts, the Court held that since the coverage formula was based on 40-year-old data, it was no longer responsive to current needs and impermissibly burdened the constitutional principles of federalism and state sovereignty. While the Section 5 preclearance requirement remains on the books, it is unenforceable without the Section 4(b) coverage formula to define it.
In the seven years since the Shelby County ruling, many of the states formerly covered by the Voting Rights Act have implemented changes in voting practices that have had the effect of depressing turnout, particularly among Black, Latino, elderly, young and lower-income voters. These changes have included restricting early voting, reducing the number of polling places, requiring photo ID as voter identification, and closing many of the government offices where voters could obtain ID cards. In most of the states previously covered by Section 4(b), voting registration and turnout has fallen in the years since the Shelby County decision.
Last December, the House passed the Voting Rights Advancement Act of 2019. This bill responds to the Shelby County decision by creating a new coverage formula that applies to all states and that is based on findings of repeated voting rights violations over the past 25 years. The 25-year period would be rolling, so that coverage would be based on current conditions.
The vote in favor of this bill in the House was 228 to 187, with only one Republican member voting in support. The new voting rights bill is one of many pieces of legislation passed by the House in the past 18 months that have gone to Mitch McConnell’s legislative graveyard in the Senate.
The House will almost certainly pass the bill again in the Congress that convenes in January. If Democrats control the Senate by a small majority in 2021, they would not have enough votes to overcome a filibuster of the bill by nearly all Senate Republicans. Would Senate Democrats be willing to eliminate the legislative filibuster, which has already been eliminated for judicial nominations, in order to pass voting rights and other important bills in 2021?
Eric L. Davis is professor emeritus of political science at Middlebury College.
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