History of the VRA
In March 1965, on a bridge outside Selma, Alabama, a second phase of the revolution was born. Civil rights activists, led by Dr. King and others, took to the streets in a peaceful protest for voting rights for African-Americans. They were met with clubs and violence. Many were beaten and severely injured, including a young activist named John Lewis - now Congressman Lewis.
But the activists did not march in vain. Television brought this conflict of angry violence against peaceful, moral protest into living rooms across America.
Five days later, President Johnson announced to a joint session of Congress that he would bring them an effective voting rights bill. Echoing the spiritual anthem of the civil rights movement, he said simply, "We Shall Overcome." He - and we - did overcome. On August 6, 1965, President Johnson signed into law the Voting Rights Act, hailed by many as the most effective civil rights law ever.
Before the VRA
Prior to the Civil War, African Americans were almost totally disenfranchised throughout the states. Latino voters faced similar barriers to voting in Texas and other parts of the Southwest., as did Native American and Asian American voters in the West. Even after enactment of the Fifteenth Amendment to the Constitution, in 1870, which gave all men, regardless of race, color, or previous condition of servitude the right to vote, many states continued to use various methods to prevent people of color from voting, including literacy tests, poll taxes, the disenfranchisement of former inmates, intimidation, threats, and even violence. Also, until 1965, federal laws did not challenge the authority of states and localities to establish and administer their own voting requirements.
The VRA
The Voting Rights Act of 1965 was designed to address these issues. It prohibits discrimination based on race, and requires certain jurisdictions to provide bilingual assistance to language minority voters. Section 2 of the Act, which bars the use of voting practices or procedures that discriminate against minority voters, has been used successfully to attack discrimination in voting including restrictive voter registration requirements, districting plans that dilute minority voting strength, discriminatory annexations, and the location of polling places at sites inaccessible to minority voters.
Section 5 of the Act requires federal "preclearance" before covered jurisdictions (i.e., specified jurisdictions with a history of practices that restrict minority voting rights) may make changes in existing voting practices or procedures. The Act also provides the Department of Justice with the authority to appoint federal observers and examiners to monitor elections to ensure that they are conducted fairly. Initial enforcement efforts targeted, among other things, literacy tests, poll taxes, and discriminatory registration practices.
In 1975, the Voting Rights Act was amended to address the voting rights of language minority groups. Sections 4 and 203 of the Act apply in jurisdictions with significant numbers of voters with limited or no English proficiency and require such jurisdictions to provide voting materials and assistance in relevant languages in addition to English.
The Supreme Court and the VRA
In 1980, however, the Supreme Court dealt voting rights enforcement a significant setback. In City of Mobile v. Bolden, the Court held that the in order to establish a violation of Section 2, the plaintiff had to show that the policy or procedure in question was motivated by a discriminatory purpose.
When it renewed the Voting Rights Act in 1982, Congress overturned the Bolden ruling, making clear that it is unnecessary to prove that certain registration and voting practices have been established with discriminatory intent. Instead, Section 2 is violated if a court concludes that a voting practice has the effect of discriminating against minority voters, whether or not the plaintiffs can establish that it was motivated by bias.
A second 1982 amendment allows for people who are blind, disabled, or illiterate to be assisted in voting by almost anyone of their choice.
After the 1990 Census and the resulting round of redistricting, the number of Black and Latino representatives in Congress and in state houses across the country increased dramatically.
However, in 1993, the Supreme Court dealt yet another blow to the cause of minority voting rights. In Shaw v. Reno, the Court ruled that North Carolina's 12th Congressional District, the first district in North Carolina to elect an African American to Congress since Reconstruction, was so "bizarrely shaped" that it could violate the rights of white voters. Such "bizarre" districts, the majority suggested, could trigger strict scrutiny even though white voters could demonstrate no specific harm to themselves. In other words, an individual white voter could challenge a redistricting decision by simply alleging that race was a decisionmaking factor in drawing district lines - even absent evidence that the white plaintiffs' ability to participate had been impaired or that their votes had been diluted.
In another case from the 1990s, Reno v. Bossier Parish School Board, the Supreme Court held that the federal government could approve or "preclear" a voting change by a jurisdiction covered by Section 5 of the Act, even is such a change was motivated by a discriminatory purpose. This decision has severely hampered the effectiveness of Section 5 and thus the government's ability to fight discrimination against minority voters.
In 2003, the Supreme Court issued another decision, Georgia v. Ashcroft, which has implications for Section 5 enforcement. The Court interpreted Section 5 to allow preclearance in certain circumstances if the overall political "influence" of minority voters is not diminished, even if their ability to elect candidates of choice is. This decision was a radical departure from past practice by the Department of Justice and the D.C. District Court.
