As we mark the anniversary of the 1965 Voting Rights Act, its landmark guarantees have since dimmed.
To be sure, the revolutionary law expanded the right to vote to millions of people historically excluded from our participatory democracy. It dismantled some of the systems that kept minority voters from casting a ballot, like abolishing literacy tests.
Over the past half century, it’s been credited for everything from the election loss of Jim Clark — the Selma, Alabama sheriff who ordered his troopers to charge civil rights marchers at the Edmund Pettus Bridge — to bringing turnout levels of black voters close to that of white voters. There can be no question that it has played a key role in protecting the ability of all voters to cast a ballot that counts on Election Day.
But a coordinated campaign to weaken the Act’s protections culminated in a 2013 Supreme Court case that has imperiled our democracy and jeopardized the right to vote. On this anniversary, though, rather than lament the loss, it’s time for Congress to step up, amend the VRA, and restore the landmark law’s promise.
{mosads}Up until five years ago, the Voting Rights Act required jurisdictions with a history of racial discrimination in voting to clear changes to voting laws with the Justice Department or a federal court before implementation. The jurisdiction needed to demonstrate that the change would not have the effect of making minority voters worse off, or was not designed for the purpose of doing so. Congress set out a formula for determining which jurisdictions were covered by the preclearance requirement. But in Shelby County v. Holder, the Supreme Court ruled 5-4 that the formula for determining which jurisdictions needed preclearance was out of date. That effectively wiped out the preclearance requirement, and largely ended the practice of stopping discriminatory laws before they had a chance to do their damage.
The fallout was swift. Texas announced the same day as the decision that it was going to implement the country’s strictest photo ID law, notwithstanding the fact that a federal court and the Department of Justice separately concluded that it shouldn’t be approved. North Carolina passed a notoriously terrible voter-suppression law that was unlike anything the country had seen in decades.
And now, it seems the Shelby County decision may have quietly had a negative impact on another key part of voting administration. Voter purges — or attempts to clean up voter lists that are too often done recklessly or with bad data — pose a growing threat to the right to vote. Unlike legislation that’s subject to public debate on the floor of statehouses across the country, purges are often done behind-the-scenes. This makes them more difficult to identify until voters show up at the polls. When conducted properly, purges can keep voter rolls up to date. But all too often jurisdictions are implementing bad purge laws and practices that are threatening the right to vote.
In a recent report, we found that purges have increased across the country, particularly in the handful of states that used to be subject to preclearance. In fact, had purge rates continued in these areas at the same pace as rates in jurisdictions not subject to preclearance at the time of Shelby County, two million fewer voters would have been deleted from voter rolls between the elections of 2012 and 2016. Overall, between the federal elections of 2014 and 2016, almost four million more names were purged from the rolls than between 2006 and 2008.
We cannot tell how many of these voters were wrongly kicked off the rolls. But we found that some states are denying voters legal protections to which they are entitled under federal law. Some are also using bad information to identify who should be purged, like consulting an inaccurate list that incorrectly identifies voters as ineligible. We also know that researchers have concluded that the criteria used by Crosscheck, a problematic purge database, is more likely to tag African-American, Asian-American, and Latino voters for removal than white voters.
Fifty-three years since the passage of the Voting Rights Act, we are still faced with immense challenges when it comes to ensuring voting rights for all Americans. But the Supreme Court didn’t completely gut the VRA back in 2013. Moreover, in his majority opinion, Chief Justice John Roberts wrote “Congress may draft another formula [for determining preclearance] based on current conditions.”
Even with a Justice Department that seems poised to weaken voter protections – and with a Supreme Court we cannot be confident will shield voting rights – a new Congress next year could devise a new formula and get preclearance back and running. In fact, members in both the House and Senate have introduced bills attempting to do just that.
At a moment when our democracy feels precarious, and as we enter what is likely to be a tumultuous midterm season, restoring the promise of the Voting Rights Act would reaffirm our nation’s commitment to free and fair elections.
Myrna Pérez is deputy director of the Democracy Program at the Brennan Center for Justice at NYU School of Law, and leader of the Center’s Voting Rights and Elections project.