History of the VRA
In March 1965, on a bridge outside Selma, Alabama, a second phase of the revolution was born. Civil and human rights activists, led by the Rev. Dr. Martin Luther King Jr. 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, who now serves as Congressman for Georgia's 5th District.
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 Lyndon B. 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 and human rights movement, he said simply, "We Shall Overcome."
He – and we – did overcome. On August 6, 1965, Johnson signed into law the Voting Rights Act (VRA), hailed by many as the most effective civil rights law ever enacted.
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 15th 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 Voting Rights Act (VRA) 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 VRA, 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 VRA 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 VRA 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 VRA was amended to address the voting rights of language minority groups. Sections 4 and 203 of the VRA 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 VRA, 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.
In August 2006, just days after President Bush signed into law the bill reauthorizing core provisions of the Voting Rights Act of 1965, a small water district in Austin, Texas filed a federal lawsuit in Washington, D.C., challenging Congress’ reauthorization of Section 5 of the VRA. The Supreme Court’s decision in the case, Northwest Austin Municipal Utility District No. 1 v. Holder, did not rule on the constitutionality of Section 5. Instead it granted the Northwest Austin Municipal Utility District a bailout and expanded the ability to "bail out" of Section 5 coverage to all local jurisdictions that can show a clean voting record for 10 years.
In April 2010, Shelby County, Alabama, a largely White suburb of Birmingham, filed suit in federal court in Washington, D.C., seeking to have Section 5 declared unconstitutional. Shelby County claimed that Congress did not have the required constitutional authority when it reauthorized Section 5 of the VRA in 2006. On September 21, 2011, the U.S. District Court for the District of Columbia upheld the constitutionality of Section 5, holding that Congress acted appropriately in 2006 when it reauthorized the statute and the U.S. Court of Appeals for the District of Columbia Circuit affirmed the district court ruling by a vote of two to one on May 12, 2012.
However, on June 25, 2013, the Supreme Court ruled in Shelby County v. Holder that the coverage formula in Section 4(b) of the VRA, which was used to determine the states and political subdivisions subject to Section 5 preclearance, was unconstitutional. Thus, while the Court did not invalidate the preclearance mechanism in the VRA per se, it effectively halted its use by invalidating the formula that determined which places were subject to the preclearance obligation.