Voting Rights Protections: More Critical Now Than Ever
A “Vote” poster publicizes a local polling place. Photo by Tom Arthur.
The United States has an undeniably complex and convoluted history with voting rights. Centuries of targeted disenfranchisement have left average voter turnout in presidential elections at 62.8% for the past 20 years. The current session of Congress is considering the passage of the John Lewis Voting Rights Advancement Act of 2021 and the Freedom to Vote Act to make voting more equitable and accessible to marginalized communities. The first piece of legislation, the John Lewis Voting Rights Act, passed in the US House of Representatives on party lines and is now on to the Senate where it awaits a tight vote given the 50-50 split in representation between Republicans and Democrats. The Freedom to Vote Act, a newer piece of legislation originally sponsored by Minnesota Senator Amy Klobuchar, was introduced in the Senate on September 14, 2021 and has yet to be voted on. However, to understand the current legislation and the dire need for its passage, it is critical to look back into America’s past with voting rights and problematic history of disenfranchisement of marginalized communities.
1870 - The 15th Amendment to the Constitution of the United States
The year 1870 marked the ratification of the 15th Amendment, which was established to protect the voting rights of African American men after the Civil War. Before the passage of the 15th Amendment, voting was generally considered to be a “political” right as opposed to an unalienable right such as “life, liberty, and the pursuit of happiness” as illustrated in the Declaration of Independence. The amendment was passed by Congress on February 26, 1869, and states that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” While the effects of the amendment were noble, the intentions behind it were less so—Republicans in Congress grew concerned over the increase in the congressional representation of the Democratic Southern states following the passage of the 13th Amendment.
When exploring the 15th Amendment, it is more important to consider what the amendment lacks, rather than what it contains. Although ratified in 1870, the amendment took more than a century to be entirely integrated into American life. Literacy tests, poll taxes, and other discriminatory policies plagued America’s marginalized communities, particularly communities of color. Some southern Democrats went so far as to change polling locations on the day of an election and only inform the white local newspapers, essentially eliminating the entire Black vote. The 15th Amendment noticeably had no language regarding any of these barriers to voting. Some Republican Congressmen, including Senator Charles Sumner of Massachusetts, went so far as to abstain from voting for the amendment because it did not specifically ban literacy tests and poll taxes.
The United States’ mishandling of the franchise has persisted for centuries. It is not that the issue of voting rights was ignored altogether; rather, the problem laid in the details dedicated to the issue — or lack thereof. Without specific regulations and directives in the 15th Amendment, various discriminatory voting practices were used to prevent Black Americans from exercising their right to vote. The Supreme Court went so far as to uphold a handful of barriers to voter registration in Williams v. Mississippi. In the case, the court ruled that the provisions of the 1890 Mississippi constitution that set requirements for voter registration, including poll taxes, literacy tests, and the grandfather clause, were constitutional. The reasoning: although the statutes made discriminatory practices possible, the laws themselves didn’t actively discriminate against African Americans. Williams v. Mississippi allowed for the implementation of other voter-suppression statutes in Louisiana, South Carolina, North Carolina, Alabama, Virginia, and Georgia. Despite the invalidation of a handful of policies like grandfather clauses and whites-only primaries, voter turnout rates among African Americans living in the south were nearly 30% lower than those living in the north.
1965 - The Voting Rights Act of 1965
The Voting Rights Act of 1965 followed the passage of the Civil Rights Act in 1964, which was intended to end discrimination on the basis of race, color, religion, or national origin. After decades of voter intimidation and discrimination, President Lyndon B. Johnson announced his intention to pass the Voting Rights Act on March 15, 1965. The purpose of the act would be to ensure that no government, be it federal, state, or local, could impede people from voting on the basis of their race. “To apply any other test—” LBJ stated in his speech to Congress, “to deny a man of his hopes because of his color or race, his religion or the place of his birth—is not only to do injustice, it is to deny America and to dishonor the dead who gave their lives for American freedom.”
The bill was passed by the Senate on May 26 by a margin of 77-19 (Democrats 47-16, Republicans 30-2), and only senators representing Southern states voted against the bill’s passage. The bill was then passed by a 333-85 vote in the House (Democrats 221-61, Republicans 112-24). Finally, the Voting Rights Act of 1965 was signed into law by President Johnson on August 6th, 1965. The original lifespan of the provisions of the act was 5 years. However, Congress extended the coverage formula for five years in 1970, seven years in 1975, and 25 years in both 1982 and 2006.
The immediate after-effects of the Voting Rights Act of 1965 were astounding. By the end of 1965, nearly a quarter of a million new Black voters had been registered to vote. By the end of 1966, only four of thirteen southern states had fewer than 50% of African Americans registered to vote. The specific and detailed preclearance regulations of the Voting Rights Act prevented countless jurisdictions from enforcing discriminatory restrictions on voting and registration.
2013 - Shelby County v. Holder
On June 25, 2013, the U.S. Supreme Court struck down key provisions of the Voting Rights Act of 1965 in Shelby County v. Holder. The case surrounded the constitutionality of Sections 4b and 5 of the Voting Rights Act. While other parts of the Voting Rights Act of 1965 were crafted to address the voter discrimination at the time, Section 4b and Section 5 were designed to prevent future voter discrimination. Section 5 required specific jurisdictions with histories of voter discrimination and disenfranchisement to submit any proposed changes in voting procedures to the Department of Justice or a federal district court in Washington, DC. Section 4b outlined which jurisdictions would be required to abide by the regulations of Section 5. As per Section 4b, any political subdivision in the United States that upheld a voting test or device that restricted the opportunity to register to vote had less than 50% of people of voting age registered to vote on November 1, 1964 would have to be subjected to the restrictions of Section 5. These jurisdictions included Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and parts of North Carolina, Arizona, Idaho, and Hawaii.
Shelby County v. Holder wasn’t the first time that Section 5 and Section 4b of the Voting Rights Act of 1965 were challenged. Other attempts to strip away provisions of the Voting Rights Act include South Carolina v. Katzenbach (1966), in which in an 8-1 decision, the Court ruled that the 15th Amendment was a valid constitutional basis for the Voting Rights Act of 1965. The Court noted that the 15th Amendment gave Congress “full remedial powers” to prevent disenfranchisement on the basis of race.
Shelby County v. Holder originated in Shelby County, Alabama—a jurisdiction that was covered by Section 4b of the Voting Rights Act of 1965. Shelby County sued U.S. Attorney General Eric Holder in the U.S. District Court for D.C., seeking a declaratory judgment that would deem Section 5 and Section 4b to be unconstitutional. The county also sought a permanent injunction against the enforcement of the two sections. The district court upheld the constitutional status of the provisions on September 21, 2011, and this decision was reaffirmed by the U.S. Court of Appeals for the D.C. Circuit on May 18, 2012. However, the Supreme Court granted a writ of certiorari, or a request that the Supreme Court order a lower court to send up the record of the case for review, on November 9, 2012, to hear the case only on the limited question of whether Congress’s decision to reauthorize Section 5 of the Voting Rights Act in for 25 years in 2006 violated the 10th Amendment and Article IV of the United States Constitution.
On June 25, 2013, the U.S. Supreme Court held that the coverage formula illustrated in Section 4b of the Voting Rights Act of 1965 was unconstitutional. The Court didn’t rule on the constitutionality of Section 5, but it was left essentially useless without the preclearance distinctions outlined in Section 4b. As a result of the Shelby County decision, jurisdictions previously held to the standards of Section 5 were no longer required to seek preclearance for new voting changes. The majority decision was delivered by Chief Justice John Roberts, who had previously expressed “skepticism about the continued need for parts of the Voting Rights Act.” The decision didn’t declare an absence of voter discrimination. Rather, it established that the “extraordinary measures” of Sections 4b and 5 of the Voting Rights Act were no longer satisfying constitutional requirements. Chief Justice Roberts concluded his decision with an assessment of the history of progress that followed the Voting Rights Act of 1965 and how that history demonstrates the lack of a need for Sections 4b and 5 given that since 1965, “voting tests were abolished, disparities in voter registration and turnout due to race were erased, and African Americans attained political office in record numbers.”
Shelby County effectively stripped the Voting Rights Act of its most productive provisions. In her scathing dissent, Justice Ruth Bader Ginsburg stated that “the Court today terminates the remedy that proved to be best suited to block [voting] discrimination.” The majority opinion of the Court reasoned that the remaining sections of the act, specifically Section 2, would be more than sufficient to guarantee and protect the right to vote for every citizen of the United States. Section 2 of the Voting Rights Act states that “No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.” While Section 2 has certain protections, the lack of details and preclearance specifications outlined in Sections 4b and 5 leave ample room for loopholes and manipulation to disenfranchise worthy voters.
2022 - Voting Rights Since Shelby County v. Holder
States and political jurisdictions previously held to preclearance standards acted immediately following the Shelby County v. Holder decision. Within 24 hours of the ruling, Texas, soon followed by Mississippi and Alabama, announced that it would begin the implementation of strict photo ID laws. Two months after Shelby, North Carolina passed HB 589, which instituted a strict photo ID requirement, stymied early voting, and established a litany of restrictictive statutes that made it difficult for citizens to vote.
Although some of these statutes were struck down after being ruled in violation of the remaining Section 2 of the Voting Rights Act, the lasting effects of the Shelby decisions continue to impact U.S. voting. A Brennan Center for Justice study on the state of voting in 2018 revealed that “previously covered states have enacted a series of laws and other measures that restrict voting since Shelby County ended preclearance.” The Voting Rights Act took another blow in 2021 when the Supreme Court reinterpreted Section 2 in Brnovich v. Democratic National Committee, significantly weakening it.
It is more than evident that time and time again, the United States has played fast and loose with its protection of the franchise. If there is any issue in American democracy that merits meticulous attention and thoughtful consideration, it is the issue of voting rights—the issue over which this country was founded.
The two pieces of voting rights legislation currently in Congress will attempt to remedy the catastrophic impacts of the Shelby County v. Holder decision. The John Lewis Voting Rights Act would restore and strengthen the provisions stripped away by the Court, including establishing new criteria to determine which states and political subdivisions would have to receive approval from the Justice Department or a federal court before enacting changes to voting procedures. The Freedom to Vote Act would be “the most comprehensive democracy reform law enacted in decades,” as per the Brennan Center for Justice. The act would expand opportunities to vote, thwart voter suppression, prevent election sabotage, reform the redistricting process, and modernize voter registration. Both acts have been unfortunately shrouded with criticisms and disinformation, including claims that the bills would essentially allow for a federal takeover of elections.
In her famous dissent in the Shelby County v. Holder case, Justice Ruth Bader Ginsburg stated, “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” Past federal elections have demonstrated that the American electorate has been and is continuing to be drenched by a downpour of voter discrimination and disenfranchisement. There is no time for frivolous legislation filled with empty promises. Now is the time to pass the John Lewis Voting Rights Advancement Act and the Freedom to Vote Act of 2021.
Jesse Levine (BC ‘25) is a first year student at Barnard College pursuing a major in Political Science and a double-minor in Psychology and Classics. Her current passions include Ted Lasso, bagels, and the Modern Love podcast.