Fourth of July Special: The Voting Rights Act

While we may be the longest continuous democracy, full suffrage was not extended to all until 1965.

Dear Reader,

I hope you have had an enjoyable Independence Day. On 4 July 1776, the Second Continental Congress approved the Declaration of Independence. By doing this, they put their own lives on the line for the purpose of endowing a future state to their fellow Americans; a state which, unlike Great Britain at the time, actually protected the unalienable rights of “life, liberty, and the pursuit of happiness.”

13 years later, many of these same men re-convened to draft the U.S. Constitution; they met to formalize how this new nation was to be run. The Constitution is a marvelous document, and it planted the seeds of the republican form of democracy we all enjoy today. However, the document in its original form failed to live up to the Declaration of Independence: it considered African-Americans to be 3/5 of a person, actively protected the institution of slavery, and created undemocratic mechanisms to elect the President and Senate. It also provided no protections of the rights of the individual citizen.

In my opinion, the struggle to force our government and society to live up to the promise of the Declaration forms the core of the illustrious history of this country. Both the Bill of Rights and the Reconstruction Amendments have helped transform the Constitution into something much greater than its original form. The Civil War and the Civil Rights Movement sought to clarify America’s commitment to upholding the idea that “all men are created equal,” and America has emerged stronger from both of those eras. But the most important fight has been the fight over access to the ballot box, as that is where change is catalyzed and cemented.

There are four whole amendments (15, 19, 24, and 26) that deal with suffrage. However, the item that forms the single greatest protection of the right to vote, and what arguably made this country into the multiracial democracy it is today, is the Voting Rights Act of 1965. This simple explainer of the Voting Rights Act serves as a piece of context for an upcoming article on the recent Supreme Court case “Brnovich vs. DNC.”

I hope you enjoy your Independence Day, and please be on the lookout over the next couple of days for a SCOTUS Notes piece on Brnovich v. DNC.

Sincerely, Parakram Karnik

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The Voting Rights Act is what arguably expanded American democracy to all citizens of this country, regardless of race and geographic location. Signed into law in 1965 by President Lyndon Baines Johnson, it seeks to give teeth to the Fifteenth Amendment. In 1870, this amendment to the US constitution was passed to protect the voting rights of recently-freed slaves in Southern states. It reads as follows,

Section 1: 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.

Section 2: The Congress shall have power to enforce this article by appropriate legislation.

- US Constitution, Fifteenth Amendment

While noble in intent, Southern Democrats who sought to restrict the Black vote quickly found workarounds that still accomplished the task of removing ballot-box access from African-Americans. From the 1880s to 1965, no laws explicitly barred African-Americans from voting, but a combination of poll taxes, literacy tests, and other restrictive voting regulations kept Black turnout under 5% in most states of the erstwhile Confederacy.

After the Civil Rights Act was signed in 1964, many in the federal government believed that the problem of government-sanctioned racism was over. However, Martin Luther King Jr. and many of his contemporaries realized that without protecting the right of African-Americans to vote, the gains seen during the Civil Rights Movement might be short-lived as Southern-white backlash began to crest in preparation for the 1966 midterms. So, after a famed march led by Dr. King from Selma to Montgomery, in Alabama, the government finally passed the Voting Rights Act to protect the black vote to the fullest extent possible.

Some of the more important provisions are as follows:

Section 2: This prevents any electoral jurisdiction from implementing a law that, in theory or practice, abridges the right to vote from a certain minority. This is important because it ensures that seemingly “color-blind” voting restrictions can be struck down if they appear to have clear discriminatory effects. This section formed the central part of the dispute over Brnovich v. DNC.

Alongside combatting restrictions on voting, it also attacks “voter dilution”: the practice of creating systems and voting legislation to drown out minority voices in the democratic process. This wing of Section 2 creates “VRA districts”: congressional districts specifically designed to give minorities their own representation (such as Alabama’s 7th Congressional District).

Sections 4(b) and 5: Section 5 required certain jurisdictions to have to “pre-clear” any changes to their voting laws with the US Department of Justice before they could implement any changes. This was designed to give the federal government more power to ensure that states did not use loopholes to stop minorities from voting. The criteria for being put under pre-clearance mandates were outlined in Section 4(b), which essentially held that states with low turnout or racist voting practices in the 60s had to be covered by Section 5.

However, in the 2013’s Shelby County v. Holder, Section 4(b) was ruled unconstitutional. The Supreme Court deemed it unfair for the federal government to punish states in perpetuity for mistakes they made in the 1960s. This ruling rendered Section 5 moot, considering there were now no criteria to establish which jurisdictions would be placed under it. SCOTUS did say that Congress could pass new and updated pre-clearance criteria to allow for the enforcement of Section 5; the Republican Party has blocked these efforts at every step. The GOP views (1) the era of racist voter suppression to be, while deeply unfortunate, mainly a thing of the past and (2) new criteria to be an infringement on states' rights to conduct their elections without excessive federal interference. At the current moment, Section 2 is the only really enforceable and important provision of the VRA left standing.

As we will discuss in my upcoming piece, Justice Alito’s majority opinion in Brnovich v. DNC splits Section 2’s voter dilution and vote-prevention pieces, creating two separate fields of precedent. This will have interesting ramifications on current and ongoing efforts to enforce the VRA, such as the recent lawsuit from the Department of Justice against Georgia’s new voter integrity laws.