Women Lawyers of Sacramento’s first program this year was held on February 24, 2022, jointly hosted with the Wiley W. Manuel Bar Association, and featured a conversation with California Secretary of State, Shirley N. Weber, Ph.D. During the virtual event, Dr. Weber spoke about the significance of voting rights and importance of celebrating Black History. In the Q & A portion of the event, Dr. Weber urged local Bar Associations to be involved in educating the community about the importance of voting rights, and the need to protect the advances made through the Voting Rights Act of 1965. The following summary of the Voting Rights Act and U.S. Supreme Court decisions is offered in honor of Dr. Weber’s advice. Thank you Dr. Weber.
The Voting Rights Act of 1965 is considered to be the most effective piece of federal civil rights legislation ever written. Enacted with the intent of enforcing the Fifteenth Amendment, to prohibit racial discrimination in voting, and secure the right to vote for racial minorities throughout the country, especially in the South, it was signed into law by President Lyndon B. Johnson, in the presence of Martin Luther King, Jr. on August 6, 1965, during the height of the civil rights movement.
Congress later amended the Act five times to expand its protections and the US Supreme Court has acted three times within the last ten years to curb them.
The act contains numerous provisions that regulate elections. The act’s “general provisions” provide nationwide protections for voting rights. Section 2 is a general provision that prohibits state and local government from imposing any voting rule that “results in the denial or abridgement of the right of any citizen to vote on account of race or color” or membership in a language minority group. Other general provisions specifically outlaw literacy tests and similar devices that were historically used to disenfranchise racial minorities.
The act also contains “special provisions” that apply to only certain jurisdictions. A core special provision is the Section 5 preclearance requirement, which prohibited certain jurisdictions from implementing any change affecting voting without receiving preapproval from the U.S. attorney general or the U.S. District Court for D.C. to ensure that the change does not discriminate against protected minorities. Another special provision requires jurisdictions containing significant language minority populations to provide bilingual ballots and other election materials.
Section 5 and most other special provisions applied to jurisdictions encompassed by the “coverage formula” prescribed in Section 4(b). The coverage formula was originally designed to encompass jurisdictions that engaged in egregious voting discrimination in 1965, and Congress updated the formula in 1970 and 1975. In Shelby County v. Holder (2013), the U.S. Supreme Court struck down the coverage formula as unconstitutional, leaving Section 5 unenforceable, relying upon the reasoning that it was no longer responsive to current conditions. The jurisdictions which had previously been covered by the coverage formula massively increased the rate of voter registration purges after the Shelby decision.
In 2021, the Brnovich v. Democratic National Committee ruling reinterpreted Section 2 of the Voting Rights Act of 1965, substantially weakening it. The ruling interpreted the “totality of circumstances” language of Section 2 to mean that it does not generally prohibit voting rules that have disparate impact on the groups that it sought to protect. In particular, the ruling held that fears of election fraud could justify such rules, even without evidence that any such fraud had occurred in the past or that the new rule would make elections safer.
Research shows that the Act had successfully and massively increased voter turnout and voter registrations, in particular among Black people. In Mississippi alone, voter turnout among Black people increased from 6 percent in 1964 to 59 percent in 1969. The Act has also been linked to concrete outcomes, such as greater public goods provision (such as public education) for areas with higher Black population shares, and more members of Congress who vote for civil rights-related legislation.
Last month, the Supreme Court announced they would revisit Section 2 in upcoming months and in a 5-4 vote reinstated an Alabama congressional map that a lower court found had diluted the voting power of Blacks in the state. In a case from Arizona last year, the justices had already narrowed the reach of Section 2 as they upheld policies requiring ballots cast by people at the wrong precinct to be wholly discarded and criminalizing third-party collection of absentee ballots, such as at nursing homes.
Alabama's population is 27% Black, and in the February 2022 case, Merrill v. Milligan (2/7/22), the court upheld the creation of a redistricting map that would provide Blacks the opportunity to elect their preferred candidate in only one of the state's seven congressional districts. The three liberal justices dissented and warned that if the Supreme Court fully accepts Alabama's legal rationale for opposing a second majority-Black district in the state, it “would rewrite decades of this Court's precedent” that has given racial minorities an equal opportunity to participate in elections. By allowing the state to use that map, Justice Elena Kagan wrote in her dissent, joined by Justices Stephen Breyer and Sonia Sotomayor, the court “does a disservice to Black Alabamians who under that precedent have had their electoral power diminished -- in violation of a law this Court once knew to buttress all of American democracy.”
Voting Rights Act of 1965 (https://en.wikipedia.org/wiki/Voting_Rights_Act_of_1965)
History of Federal Voting Rights Laws: The Voting Rights Act of 1965. United States Department of Justice
Voting Rights Act of 1965. History.com.
Voting Rights Act (https://ballotpedia.org/Voting_Rights_Act)
Brnovich v. Democratic National Committee, 594 U.S. ___ (2021)
Shelby County v. Holder, 570 U.S. 529 (2013)
The Supreme Court may completely hollow out the Voting Rights Act by 2024 (https://www.cnn.com/2022/02/08/politics/supreme-court-voting-rights-act-2024-election/index.html)