Voting Rights Act of 1965
|Long title||An act to enforce the fifteenth amendment to the Constitution of the United States, and for other purposes.|
|Nickname(s)||Voting Rights Act|
|Enacted by the||89th United States Congress|
|Effective||August 6, 1965|
|Stat.||79 Stat. 437|
|Title(s) amended||42—The Public Health and Welfare|
|U.S.C. sections created||42 U.S.C. §§ 1973–1973bb-1|
|United States Supreme Court cases|
|South Carolina v. Katzenbach (1966)
Katzenbach v. Morgan (1966)
Allen v. State Board of Election (1969)
Oregon v. Mitchell (1970)
Beer v. United States (1976)
Rome v. United States (1980)
Mobile v. Bolden (1980)
Thornburg v. Gingles (1986)
Growe v. Emison (1993)
Voinovich v. Quilter (1993)
Shaw v. Reno (1993)
Holder v. Hall (1994)
Johnson v. De Grandy (1994)
Miller v. Johnson (1995)
Bush v. Vera (1996)
Lopez v. Monterey County (1999)
Reno v. Bossier Parish School Board (2000)
Easley v. Cromartie (2001)
Georgia v. Ashcroft (2003)
League of United Latin American Citizens v. Perry (2006)
Bartlett v. Strickland (2009)
Northwest Austin Municipal Utility District No. 1 v. Holder (2009)
Shelby County v. Holder (2013)
The Voting Rights Act of 1965 (42 U.S.C. §§ 1973–1973bb-1) is a landmark piece of national legislation in the United States that prohibits discrimination in voting. Echoing the language of the Fifteenth Amendment to the United States Constitution, the Act prohibits states and local governments from imposing any "voting qualification or prerequisite to voting, or standard, practice, or procedure ... to deny or abridge the right of any citizen of the United States to vote on account of race or color." It was signed into law by President Lyndon B. Johnson, who had earlier signed the landmark Civil Rights Act of 1964 into law.
The Act established extensive federal oversight of elections administration. Section 5 of the Act prohibited states and local governments with a history of discriminatory voting practices from implementing any change affecting voting without first obtaining the approval of the United States Attorney General or a three-judge panel of the U.S. District Court for D.C., a process known as "preclearance". Under Section 4(b), this preclearance requirement specifically applied to states and political subdivisions (mostly in the South) that had used a "test or device" to limit voting and in which less than 50 percent of the population was registered to vote, or voted, in the 1964, 1968, or 1972 presidential election. Section 5 has been renewed and amended by Congress four times, the most recent being a 25-year extension signed into law by the President George W. Bush in 2006.
The Act is widely considered landmark civil rights legislation, but some of its provisions have sparked political controversy. During the debate over the 2006 extension, some Republican members of Congress objected to renewing the Section 5 preclearance requirement, arguing that it represents an overreach of federal power and places unwarranted bureaucratic demands on Southern states that have long since abandoned the discriminatory practices the Act was meant to eradicate. Conservative legislators also opposed requiring states with large Spanish-speaking populations to provide bilingual ballots. Congress nonetheless voted to extend the Act for twenty-five years with its original enforcement provisions left intact.
In Shelby County v. Holder (2013), the United States Supreme Court struck down Section 4(b) of the Act, which contains the coverage formula that determines which state and local jurisdictions are subject to Section 5 preclearance, as unconstitutional. The Court said that although the formula was rational and necessary at the time of its enactment, it is no longer responsive to current conditions. The Court did not strike down Section 5, but without Section 4(b), no jurisdiction will be subject to Section 5 preclearance unless Congress enacts a new coverage formula.
- 1 Background
- 2 Legislative history
- 3 Provisions
- 4 Impact
- 5 Constitutionality
- 6 See also
- 7 Notes
- 8 References
- 9 Further reading
- 10 External links
As initially ratified, the United States Constitution gave individual states nearly complete discretion to determine voting qualifications for their residents, including racially discriminatory voting qualifications. After the Civil War, the Reconstruction Amendments to the Constitution were ratified, placing limits on this discretion: the Thirteenth Amendment, ratified in 1865, prohibits slavery, while the Fourteenth Amendment, ratified in 1868, grants citizenship to all people "born or naturalized in the United States" and guarantees due process and equal protection. The Fifteenth Amendment, ratified on February 3, 1870, makes an explicit exception to state power to determine voter qualifications, providing that "[t]he right of U.S. citizens 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." Each of these amendments also contains an enforcement clause that grants Congress the power to enforce their provisions through legislation.
To enforce the Fifteenth Amendment, Congress passed the Enforcement Act of 1870, which made it a crime for public officers and private persons to obstruct an individual's voting rights. Congress amended the statute with the first Enforcement Act of 1871 to provide for federal supervision of the electoral process, including voter registration. However, in 1875 the Supreme Court stuck down parts of this legislation in United States v. Cruikshank and United States v. Reese.:97 After Reconstruction ended in the later 1870s, enforcement of these laws became erratic, and in 1894, Congress repealed most of their provisions.
Southern states sought to maintain the disenfranchisement of racial minorities during and after Reconstruction. From 1868 to 1888, the principal techniques the states used to suppress the African American vote were violence and massive election fraud. From 1888 to 1908, Southern states legalized disenfranchisement by enacting Jim Crow laws; several states amended their state constitutions and passed legislation to impose literacy tests, poll taxes, property ownership qualifications, "good character" tests, requirements that voter registration applicants "interpret" a particular document, and grandfather clauses that allowed otherwise disqualified voters to vote if their grandfathers voted (excluding many African Americans whose grandfathers had been slaves). During this period, the Supreme Court generally upheld state efforts to discriminate against racial minorities, and in Giles v. Harris (1903), the Court held that the judiciary did not have the remedial power to force states not to intentionally deny racial minorities the right to register to vote. This decision effectively allowed states to disenfranchise racial minorities, the Fifteenth Amendment notwithstanding.:100
Beginning in the 1950s, the American Civil Rights Movement escalated pressure on the federal government to protect the voting rights of racial minorities. In 1957, Congress passed the first legislation since Reconstruction designed to protect voting rights: the Civil Rights Act of 1957, which authorized the Attorney General to sue for injunctive relief on behalf of persons whose Fifteenth Amendment rights were deprived, created the Civil Rights Division within the Department of Justice to enforce civil rights through litigation, and created the Commission on Civil Rights to investigate voting rights deprivations. Further protections were enacted in the Civil Rights Act of 1960, which allowed federal courts to appoint "referees" to conduct voter registration in jurisdictions that engaged in voting discrimination against racial minorities. Although these acts enhanced the ability of courts to remedy violations of federal voting rights, strict legal standards made it difficult for the Department of Justice to successfully pursue litigation. For example, to succeed in a lawsuit against a state that maintained a literacy test, the Department needed to prove that the denied voter registration applications of racial minorities were comparable to the accepted voter registration applications of whites. To make this showing, the Department needed to research voter registration applications county-by-county, comparing thousands of applications in a process that could take thousands of hours to complete. The Department's efforts were further hampered by resistance from local election officials, who "lost" records, purged racial minorities from voter rollers shortly after their registration, and resigned to vitiate injunctions against them and to leave registrar positions vacant so that voter registration ceased. Moreover, several federal district court judges resisted efforts to enfranchise racial minorities, requiring lawsuits to be appealed repeatedly before the courts granted relief. Thus, despite the Department filing 71 cases between 1957 and 1964, black voter registration in the South changed only marginally.:514
In 1964, Congress responded to rampant discrimination against African Americans in public accommodations and government services by enacting the Civil Rights Act of 1964. The Act included some provisions that expanded voting rights, such as requiring registrars to equally administer literacy tests in writing to each voter, creating a rebuttable presumption that persons who attained a sixth grade education are sufficiently literate to vote, and prohibiting registrars from rejecting voter registration applications due to minor errors.:97 However, despite lobbying from civil rights leaders, the Act did not contain a comprehensive remedy for discrimination in voting.:254 President Lyndon B. Johnson recognized this, and shortly after the 1964 elections in which Democrats gained overwhelming majorities in both chambers of Congress, he privately instructed the new Attorney General, Nicholas Katzenbach, to draft "the goddamndest, toughest voting rights act that you can".:48–50 However, Johnson did not publicly push for the legislation; his advisers warned him of political costs for vigorously pursuing a voting rights bill so soon after Congress passed the Civil Rights Act of 1964, and Johnson was concerned that pushing a voting rights bill would anger southern Congressmen, whose votes he felt were necessary to enact his Great Society reforms.:50–52
Following the 1964 elections, civil rights organizations such as the Southern Christian Leadership Conference (SCLC) and the Student Nonviolent Coordinating Committee (SNCC) banded together to push for the passage of stronger federal legislation that would protect the voting rights of racial minorities despite the defiance of local officials. Their efforts culminated in voting rights protests in Alabama, particularly Selma, where Sheriff Jim Clark's police force violently resisted efforts of African Americans to register to vote. James Forman of SNCC explained that in Selma, "Our strategy, as usual, was to force the U.S. government to intervene in case there were arrests—and if they did not intervene, that inaction would once again prove the government was not on our side and thus intensify the development of a mass consciousness among blacks. Our slogan for this drive was 'One Man, One Vote.'":255
On January 18, 1965, Martin Luther King, Jr. and other civil rights leaders launched a voting rights campaign in Selma, which drew national attention to the issue of voting rights.:259 They organized several marches that led to violent clashes with police that received attention in the national press. King was arrested in a demonstration on February 1 for violating an anti-parade ordinance, and the arrest spurred schoolchildren to engage in similar marches in the following days, hundreds of whom were then arrested.:261 While King was in prison, Malcom X briefly visited Selma on February 4 at SNCC's invitation. He gave a militant speech in which he noted that other civil rights leaders did not believe in King's nonviolent approach;:262 privately, he expressed his goal was to scare white people into supporting King's efforts.:69 The next day, King was released from jail and a letter he wrote addressing voting rights, "Letter From A Selma Jail", appeared in the New York Times.:263 With the nation paying increasing attention to Selma and voting rights, President Johnson reversed his decision to delay voting rights legislation, announcing on February 6 that he would sent a voting rights proposal to Congress.:69 However, he did not reveal the proposal's content or when it would be come before Congress.:264
On February 18, in nearby Marion, Alabama, state troopers violently broke up a nighttime voting-rights march that resulted in the death of young protester Jimmie Lee Jackson.:265 Spurred in part by this event, on March 7 SCLC and SNCC began the Selma to Montgomery marches in which citizens of Selma marched to Alabama's capital, Montgomery, to present Governor George Wallace with their grievances. On the first of these marches, the demonstrators were stopped by state and local police on horseback at the Edmund Pettus Bridge outside of Selma. The police shot tear gas into the crowd and trampled protesters. The scene, later known as "Bloody Sunday", was captured by television cameras and prompted national outrage.:515
In the wake of the events in Selma, President Lyndon B. Johnson, in a dramatic joint-session address on March 15, called upon Congress to enact expansive voting rights legislation. He famously concluded his speech with the words "we shall overcome", the American Civil Rights Movement's most powerful theme.:278 The legislation that Johnson referred was the Voting Rights Act of 1965, and it was introduced in Congress two days later while Martin Luther King, Jr. and other civil rights leaders, now under the protection of federal troops, led a march of 25,000 people to Montgomery in support of voting rights.:516:279, 282
The Voting Rights Act of 1965 was introduced in Congress on March 17, 1965 as S. 1564, and it was jointly sponsored by Senate Majority Leader Mike Mansfield (D-MT) and Senate Minority Leader Everett Dirksen (R-IL), both of whom worked with Attorney General Katzenbach to draft the bill's language. The Democrats held a 68-32 majority in the Senate after the 1964 Senate elections, and thus the party could overcome a filibuster by a two-thirds vote if it remained united.:49 However, Johnson worried that Southern Democrats would attempt to use the filibuster to weaken or defeat the legislation, and therefore he enlisted Dirksen to help gain Republican support. Initially, Dirksen did not intend to support voting rights legislation so soon after supporting the Civil Rights Act of 1964, but he became willing to accept "revolutionary" civil rights legislation after learning about the police violence against voting rights marchers in Selma on Bloody Sunday.:95–96 Given Dirksen's key role in helping Katzenbach draft the bill, it became known informally as the "Dirksenbach" bill.:96 After Mansfield and Dirksen introduced the legislation, 64 Senators agreed to cosponsor the bill.:150
As introduced, the bill contained three core provisions: a "coverage formula" that determined which state and local governments were subject to the Act's other special provisions ("covered jurisdictions"); a "preclearance" requirement that prohibited covered jurisdictions from implementing changes to their voting procedures without first receiving a determination from the U.S. Attorney General or the U.S. District Court for D.C. that the changes had no racially discriminatory purpose or effect; and the suspension of "tests or devices", such as literacy tests, in the covered jurisdictions.:519–520, 524 The Act also authorized the appointment of federal examiners to register voters, and of federal observers to monitor elections, in covered jurisdictions that engaged in egregious discrimination. The bill set these provisions, known collectively as "special provisions", to expire after 5 years.:5–6
Although stated in neutral terms, the coverage formula encompassed few jurisdictions outside of the Deep South.:520 The coverage formula reached a jurisdiction if the following two elements existed: 1) the jurisdiction maintained a "test or device" on November 1, 1964, and 2) less than 50% of the jurisdiction's voting-age residents either were registered to vote on November 1, 1964 or actually voted in the November 1964 presidential election. To appease legislators who felt that the bill unfairly targeted southern states, the bill included a general prohibition on racial discrimination in voting that applied nationwide.:1352 The bill also included provisions allowing covered jurisdiction to "bail out" of coverage by proving in federal court that it had not used a "test or device" in the five years preceding the filing of the declaratory action.:6 Furthermore, the bill included a "bail in" provision under which federal courts could subject discriminatory non-covered jurisdictions to remedies contained in the special provisions.
The bill was first considered by the Senate Judiciary Committee, whose chair, Senator James Eastland (D-MS), opposed the legislation along with several other southern Senators on the committee. To prevent the bill from dying in committee, Mansfield proposed a motion to require the Judiciary Committee to report the bill out of committee by April 9, which the Senate overwhelmingly passed.:150 During the committee's consideration of the bill, Senator Ted Kennedy (D-MA) led an effort to amend the bill to prohibit poll taxes. Although the Twenty-fourth Amendment was ratified a year earlier and banned the use of poll taxes in federal elections, the Johnson administration and the bill's sponsors did not include a provision banning poll taxes in state elections because they feared that would lead courts to strike down the Act as unconstitutional.:521:285 Furthermore, by excluding poll taxes from the definition of "tests or devices", the coverage formula did not reach Texas or Arkansas, mitigating opposition from those two states' powerful legislative delegations.:521 Nonetheless, with the support of liberals on the committee, Kennedy's amendment to prohibit poll taxes passed. In response, Dirksen proposed an amendment to the bill that exempted from coverage states that had at least 60 percent of its eligible voters registered to vote or whose voter turnout surpassed the national average in the preceding presidential election. This amendment, which effectively exempted all states from coverage except Mississippi and Alabama, passed during a committee meeting in which three liberal members were absent. Dirksen stated that he would be willing to remove the amendment if the poll tax prohibition were removed. Ultimately, the committee reported the bill out of committee 12-4 on the April 9 deadline without a recommendation.:152–153
On April 22, the full Senate started debating the bill. Dirksen spoke first on behalf of the bill, concluding by saying that "legislation is needed if the unequivocal mandate of the 15th Amendment ... is to be enforced and made effective, and if the Declaration of Independence is to be made truly meaningful.":154 Senator Strom Thurmond (R-SC) retorted that the bill would lead to "tyranny and despotism", while Senator Sam Ervin (D-NC) argued that the bill was unconstitutional because it deprived states of their right under Article 1, Section III of the Constitution to establish voting qualifications, and because the bill targeted only jurisdictions that used literacy tests. On May 6, Ervin offered an amendment to abolish the coverage formula's automatic trigger and instead allow federal judges to appoint examiners. This amendment overwhelmingly failed, with 45 Democrats and 22 Republicans voting against it.:154–156 After lengthy debate, Ted Kennedy's amendment to prohibit poll taxes also failed 49-45. However, Dirksen and Mansfield agreed to include a provision authorizing the Attorney General to bring lawsuits against any jurisdiction, covered or non-covered, to enjoin the enforcement of poll taxes that imposed "unreasonable financial hardship" or had "the purpose or effect of denying the right to vote on account of race or color.":521:2 and a separate provision declaring that the poll taxes was being used in some jurisdictions to unconstitutionally discriminate. An amendment offered by Senator Robert Kennedy (D-NY) to grant the right to vote illiterate citizens who had achieved at least an 8th grade education in a non-English-speaking school also passed by 48-19. Southern legislators then offered a series of amendments to weaken the bill, all of which failed.:159
On March 25, the Senate voted for cloture 70-30, thus overcoming the threat of filibuster and limiting further debate on the bill. On May 26, the Senate passed the bill by a 77-19 vote (Democrats 47-16, Republicans 30-2); only Senators representing southern states voted against it.:160
House of Representatives
Statement before the United States Congress by Johnson on August 6, 1965 about the Voting Rights Act.
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The Voting Rights Act was introduced in the House of Representatives as H.R. 6400, and the House debated the bill more slowly than the Senate. The House Judiciary Committee approved the bill on May 12, but it did not file its report until June 1. As reported, the bill included two amendments from subcommittee: a penalty for private actors who interfered with the right to vote, and a prohibition on all poll taxes—the latter of which gained the support of Speaker of the House John McCormack. The ranking Republican on the committee, William McCulloch (R-OH), generally supported expanding voting rights, but he opposed both the prohibition of poll taxes and the coverage formula, and he led opposition to the bill in committee.:162 The bill was then considered by the Rules Committee, whose chair, Howard W. Smith (R-VA), opposed the bill and delayed its consideration until June 24. Under great pressure from the bill's proponents, he allowed the bill to be released from committee a week later, and the full House started debating the bill on July 6.:163
To defeat the Voting Rights Act, McCulloch introduced an alternative bill, H.R. 7896. It would have allowed the Attorney General to appoint federal registrars after receiving 25 serious complaints of discrimination and imposed a nationwide ban on literacy tests for persons who could produce evidence of having attained a sixth grade education. McCulloch's bill was co-sponsored by House Minority Leader Gerald Ford (R-MI) and supported by Southern Democrats as an alternative to the Voting Rights Act.:162–164 The Johnson administration viewed the McCulloch-Ford bill as a serious threat to the Voting Rights Act. However, support for the McCulloch-Ford bill dissipated after William M. Tuck (R-VA) publicly stated that the reason H.R. 7896 was better than the Voting Rights Act was because the latter would actually ensure that blacks could vote. This statement alienated most of the McCulloch-Ford bill's backers, and the legislation failed on the House floor by a 171-248 vote on July 9. Later that night, the House passed the Voting Rights Act by a 333-85 vote (Democrats 221-61, Republicans 112-24).:163–165
Because the Senate and House versions of the bill differed, the chambers appointed a conference committee to resolve the differences. The major point of contention concerned the poll tax; the Senate version included a policy statement that criticized poll taxes and a separate provision that allowed the Attorney General to sue states that used poll taxes to discriminate, while the House version outright banned poll taxes. Initially, the conferees were stalemated. To help broker a compromise, Attorney General Katzenbach drafted a stronger policy statement that explicitly asserted that poll taxes were unconstitutional and announced that he would order the Department of Justice to sue the four states that maintained a poll tax. To assuage concerns of liberal conferees that this provision did not go far enough, Katzenbach enlisted the help of Martin Luther King Jr., who gave his support to the compromise. This broke the logjam, and on July 29, the conference committee reported its version out of committee. The House then approved the Conference Report version of the bill on August 3 by a 328-74 vote (Democrats 217-54, Republicans 111-20), and the Senate passed it on August 4 by a 79-18 vote (Democrats 49-17, Republicans 30-1).:166  On August 6, President Johnson signed the Act into law with Martin Luther King, Jr., Rosa Parks, John Lewis, and other civil rights leaders in attendance.:168
Congress enacted major amendments to the Voting Rights Act in 1970, 1975, 1982, 1992, and 2006. In each of these amendments except for the 1992 amendments, Congress extended the preclearance requirement and other special provisions, and in 1970 and 1975, Congress updated the coverage formula. In the 1982 action, Congress amended the Act to expand Section 2's general prohibition on discriminatory voting laws to ban any voting practice that had a discriminatory effect irrespective of whether the practice was enacted or maintained for a discriminatory purpose.:644–645
Anticipating the expiration of the Voting Rights Act's special provisions in 1970, Congress held extensive hearings on whether the Voting Rights Act should be amended and its special provisions reauthorized. Congress noted discrimination in voting continued in spite of the Act and that the Section 5 preclearance requirement had been minimally enforced since its enactment; prior to 1970, covered jurisdictions made only 578 preclearance submissions. Ultimately, Congress determined that although significant progress had been made in reducing racial discrimination in voting since 1965, sufficient discrimination existed to justify extending the special provisions.:6, 8
President Richard Nixon's administration, which generally disliked civil rights laws but hoped to politically capitalize on the alienation of white voters from the Democratic Party that the Voting Rights Act was causing, sought to reauthorize but weaken the law. Attorney General John N. Mitchell proposed a 3-year extension with amendments to extend the ban on "tests or devices" nationwide and abolish both the coverage formula and the preclearance requirement. Opposed by liberals and supported by Southern Democrats and Midwestern Republicans, this proposal initially passed in the House of Representatives,:204–205 but it was rejected by the Senate, which crafted its own compromise bill. The Senate passed this version by a 64-12 vote, and the House then passed it by a bipartisan 237-132 vote.:686-687 The legislation was enacted on June 17, 1970 as the Voting Rights Act Amendments of 1970. President Nixon signed it into law on June 22.:204–205, 207
Through this legislation, Congress amended the Voting Rights Act by extending the special provisions by five years.:8 Congress further decided to expand the coverage formula by supplementing it with 1968 trigger dates, bringing into coverage several new jurisdictions outside of the South and appeasing several southern legislators who felt the original coverage formula unfairly singled out the South. Simultaneously, Congress amended the bail-out provision to require covered jurisdictions seeking bailout to prove that they had not used a test or device in the ten-year period preceding their bail-out request stretching back to 1965, an increase from the original five-year period requirement. Congress also expanded the ban on using tests or devices to the entire nation.:6, 8
In addition to amending the special provisions, Congress took the opportunity to add new provisions to the Voting Rights Act. Two new provisions related to presidential elections: one provision prohibited states from applying their own durational residency requirements as a voting qualification in presidential elections, and the other provision created uniform standards for voter registration and absentee voting in presidential elections.:7 Influenced by the Vietnam War draft of people at least 18 years of age, Senator Ted Kennedy convinced Congress to also add a provision guaranteeing citizens at least 18 years of age the right to vote in federal, state, and local elections.:205-206 In a statement explaining his decision to sign the amendments, Nixon expressed doubts that this provision was constitutional, and he instructed the Attorney General to expedite litigation to test its constitutionality. Later that year, the Supreme Court, in Oregon v. Mitchell (1970), struck down the part of the provision lowering the voting age in state and local elections as unconstitutional; the Court upheld only the part of the provision that lowered the voting age in federal elections. This eventually led to the ratification of the Twenty-sixth Amendment, which lowered the voting age in all elections to 18.:60
Congress revisited the Voting Rights Act in 1975, the year that the Act's special provisions were again set to expire. The debate was less acrimonious than previous debates concerning the Voting Rights Act had been, reflective of a larger consensus in Congress that the Act remained necessary to remedy continued racial discrimination in voting. Unlike Nixon, President Ford's administration, which worked to improve relations with African Americans after Nixon's presidency, supported extending the Act without weakening it.:209-210 After conducting hearings on the subject of voting rights, Congress amended the Voting Rights Act, with the Senate approving the amendments by a 77-12 vote, and the House of Representatives by a 346-56 vote.:706 President Ford signed the amendments into law on August 6, 1975.:214
The amendments extended most of the Voting Rights Act's special provisions for an additional seven years until August 1982. Congress chose seven years to avoid having to reconsider the special provisions during the 1980s reapportionment process.:624 Relatedly, Congress amended the bail-out provision to require covered jurisdictions seeking bailout to prove that they had not used a test or device in the 17-year period preceding their bail-out request, again stretching back to 1965.:1349 Congress also expanded the coverage formula by incorporating new dates in 1972 as triggering dates, bringing more jurisdictions into coverage. Furthermore, Congress made permanent the nationwide prohibition on tests or devices.:9
The 1975 amendments also expanded voting rights for groups that traditionally fell outside the Voting Rights Act's protection. Civil rights organizations representing Hispanic, Asian American, Native Alaskan, and Native American interests argued before Congress that such groups often were the victims of discriminatory voting practices, particularly in areas where English was not the dominant language.:1350 After Congress heard testimony of language discrimination in voting, Congresswoman Barbara Jordan (D-TX) successfully led an effort to amend the Voting Rights Act to protect language minorities.:9 Specifically, Congress amended the definition of "test or device" to prohibit laws requiring ballots and voting information be provided exclusively in English in jurisdictions where a single-language minority group comprised more than five percent of the voting-age population. This in turn expanded the coverage formula to reach states like Texas that Congress wanted to cover. Congress also required that in jurisdictions that satisfied this criteria, election officials must provide ballots and voting information in the language of the applicable language minority group.:57, 521
As the special provisions were again nearing expiration, Congress again reconsidered the Voting Rights Act in 1982. Organizations in The Leadership Conference on Civil and Human Rights, such as the National Association for the Advancement of Colored People (NAACP) and the National Education Association (NEA), organized to pressure Congress both to extend the special provisions and to expand the general prohibition on discriminatory voting laws.:1351–1353 Congressional opponents of the amendments had little support for their positions outside of Congress.:1387
The House of Representatives, which was the first chamber to consider amendments,:1380 conducted seven weeks of hearings on the legislation at which over 100 witnesses testified, most of whom supported extending the Voting Rights Act's special provisions by at least 10 years.:17 President Ronald Reagan's administration did not testify at the hearings and largely stayed out of the debate as the legislation worked its way through the House, although President Reagan did indicate he supported replacing the coverage formula with a nationwide preclearance requirement.:1384–1385 The House ultimately passed legislation maintaining the coverage formula and permanently extending the special provisions.:1383 Supporters of the House bill hoped to sustain the momentum from the House and expedite approval of the House bill in the Senate, but Senators opposing the legislation slowed its passage through extensive committee hearings,:1383–1384 and the Reagan Administration announced its support for only a 10-year extension of the special provisions.:1386 The Senate eventually compromised on maintaining the coverage formula unchanged and extending the special provisions by 25 years,:1415 except for the bilingual voting assistance provision, which was extended for seven years.:23 The Senate also agreed to liberalize the bailout procedure to allow a covered state or local government to escape coverage by proving to the US District Court for D.C. that it had complied with the Voting Rights Act and undertook constructive efforts to expand opportunities for political participation in the 10 years preceding its bailout request.:523 The bailout procedure was also amended to allow a local government to bail out of coverage even if its parent state was covered.:23
However, the provision that Congress most intensely focused on was Section 2, which contains the Voting Rights Act's general prohibition of discriminatory voting laws.:1352 Two years earlier, the Supreme Court, in Mobile v. Bolden (1980), held that racially discriminatory laws violated the Fourteenth or Fifteenth Amendments only if the laws were enacted or operated for a discriminatory purpose; thus, showing that a law simply had a discriminatory effect was insufficient to state a constitutional claim of discrimination. The Court further held that Section 2 mirrored this constitutional standard.:60–61 The decision had a major impact on voting rights litigation; it prompted lower courts to overturn many judgments that were previously entered in favor of plaintiffs, and civil rights organizations dropped many planned cases. This prompted nationwide outrage over voting rights that weighed heavily on Congress as it considered amending the Voting Rights Act in 1982.:149
The Senate held nine days of hearings to consider amending the Voting Rights Act, and Section 2 was the primary focus:1389—in particular, whether to amend Section 2 to create a "results" test that prohibited any voting law that had a discriminatory effect irrespective of whether the law was enacted or maintained for a discriminatory purpose. President Reagan opposed creating a results test because its effect would be uncertain,:1388–1389 and some members of Congress, such as Senator Orrin Hatch (R-UT), raised concerns that a results test would fundamentally alter American democracy by requiring courts to impose proportional representation for protected minority groups as a remedy.:1392 To assuage this concern, Senator Robert Dole (R-KS) proposed legislative language explicitly disclaiming that a results test would require proportional representation. This compromise won support from the Senate, the House, and the Reagan administration.:1414–1415. The House passed this version of the bill by a 389-24 vote, and the Senate passed it by a 85-8 vote.:707 Senate President Reagan then signed the legislation into law on June 29, 1982.:231 The creation of the Section 2 results test substantially shifted the majority of litigation brought under the Voting Rights Act from Section 5 to Section 2.:645
As the bilingual voting assistance provision neared expiration in 1992, Congress considered legislation to extend and expand it. Representative José E. Serrano (D-NY) introduced legislation, dubbed the Voting Rights Language Assistance Act of 1992, to extend the provision for 15 years, making its term coterminous with the other special provisions scheduled to expire in 2007. The legislation also expanded the coverage formula and the bilingual voting assistance provision to cover jurisdictions containing at least 10,000 persons in of any one of the covered language minorities. This reached major cities such as Philadelphia, San Francisco, and Los Angeles. Finally, in recognition of "the historical fact that reservation boundaries predate and therefore often do not correspond to State or county lines," the legislation created an alternative coverage formula for Native American language minority voters living on reservations.
This legislation received more Congressional opposition than the 1982 amendments, most of it from Republicans. Proponents argued that the lack of bilingual assistance hindered recently naturalized citizens from exercising their voting rights and that the country had a history of acceptance toward linguistic pluralism. Opponents argued that the Voting Rights Act was never meant to protect language minorities and that the bilingual assistance provision was a costly unfunded mandate.:26 Opponents proposed several amendments to weaken the legislation, including limiting the extension to 5 years, requiring the federal government to pay for the bilingual voting materials, and completely removing the Voting Rights Act's bilingual provisions. However, these amendments failed, and Congress passed the legislation with mostly Democratic support; the House passed it by a 237-125 vote, and the Senate passed it by a 75-20 vote. President George H. W. Bush signed the legislation on August 26, 1992.
Congress again reconsidered the Voting Rights Act in 2006 as the special provisions again neared expiration in 2007. Civil rights organizations advocated for not only renewal of the special provisions, but also for strengthening them.:206 As a matter of principle, Democrats generally supported renewing the special provisions. However, the Republican Party controlled both chambers of Congress and the presidency, and many Republicans considered the preclearance requirement an affront to states' rights and the principle of color-blindness.:180 Furthermore, conservatives noted that the primary beneficiaries of the special provisions were African Americans, who overwhelmingly and increasingly voted for Democratic Party candidates.:207 However, Republicans were also receiving increasing support from some language minority groups, particularly Hispanics and Asian Americans, and they did not wish to risk losing that support by refusing to reauthorize the special provisions.:208 Republicans also recognized that the Voting Rights Act often helped Republican candidates win by requiring jurisdictions to pack Democratic-leaning racial minorities into few election districts. Furthermore, House Judiciary Committee Chair Jim Sensenbrenner (R-WI5) had a strong desire to reauthorize the special provisions, and he lead an early effort to pass a reauthorization bill before his chairmanship expired at the end of 2006. Thus, a consensus in favor of reauthorizing the special provisions emerged early in the legislative process.:180–181
In 2005, the House Judiciary Subcommittee on the Constitution began holding hearings on amending the Voting Rights Act. Few witnesses at the hearings testified against reauthorizing the special provisions, and the committee focused primarily on assembling evidence of discrimination in voting.:181–182 Congress's evidentiary record of voting discrimination was viewed as particularly important because the constitutional standard under which legislation passed to enforce constitutional rights under the Fourteenth Amendment had changed since the previous reauthorization. Per the Supreme Court case Boerne v. Flores (1997) and its progeny, Congress needed to demonstrate that the special provisions were "congruent and proportional" to remedying or preventing unconstitutional racial discrimination in voting. This presented a quandary for the committee, which needed to assemble evidence to demonstrate that the special provisions were generally successful in combating voting discrimination but not so successful as to no longer be necessary. Given the uncertainty surrounding the congruence and proportionality standard, political constraints, and the Supreme Court previously having upheld the special provisions, the committee decided to reauthorize the special provisions without amending the coverage formula.:192–194 The committee ultimately included in the record four types of evidence to support this reauthorization: statistics showing rates of minority voter registration, turnout, and elective officeholding in covered versus non-covered jurisdictions; statistics showing the behavior of covered jurisdictions and the Department of Justice in the preclearance process; instances of voting discrimination in covered jurisdictions; and data comparing successful section 2 litigation in covered versus non-covered jurisdictions.:195
On May 2, 2006, Representative Sensenbrenner introduced the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006. The bill proposed to extend the special provisions by 25 years and keep the coverage formula unchanged. The bill also proposed to amend the Voting Rights Act to overturn two recent Supreme Court cases: Reno v. Bossier Parish School Board (2000), which interpreted Section 5 to prohibit voting changes that were enacted or maintained for a "retrogressive" purpose instead of any discriminatory purpose, and Georgia v. Ashcroft (2003), which established a broader test for determining whether a voting change had an impermissible effect under Section 5 than looking only to whether a minority group could elect its candidate of choice.:207–208 While passage of the bill was virtually certain, a few Republicans lawmakers attempted to amend the bill on the House floor. One group of legislators led by Congressman Lynn Westmoreland (R–GA) argued that the reauthorization unfairly targeted certain jurisdictions and continued to punish and stigmatize jurisdictions for long-past discrimination. Another group of 80 legislators signed a letter originated by Steve King (R–IA) objecting to renewal of the provisions requiring translators or multilingual ballots for language minorities, arguing that providing ballots or interpreters in multiple languages is a costly, unfunded mandate. However, all proposed amendments to the bill failed, and the House passed the bill on July 13, 2006 by a 390-33 vote.
Shortly thereafter, the Senate unanimously passed the bill without amendment on July 20, 2006 by a 98–0 vote. However, in an unprecedented event for a bill that passed unanimously,:178 the Senate committee report on the bill was not filed until six days after passage, and only Republicans signed onto the report. The Senate report differed in significant ways from the House report, and in their own statement, Democrats objected to parts of the Senate report that appeared to highlight evidence that could jeopardize the bill's constitutionality.:186–189 The day after the committee report was filed, President George W. Bush signed the bill in a morning ceremony on the South Lawn of the White House on July 27, 2006, one year in advance of the 2007 expiration date. The audience at the signing ceremony included family members of Martin Luther King Jr. and Rosa Parks, the reverends Al Sharpton and Jesse Jackson, NAACP Chairman Julian Bond, and other prominent civil rights leaders.
The Act contains two general types of provisions: "general provisions", which apply nationwide, and "special provisions", which apply to only certain states and local governments.
General prohibition of discriminatory voting laws
Section 2 of the Act generally prohibits voting discrimination based on race, color, or language minority status.:37 The Supreme Court has allowed private plaintiffs to sue to enforce this prohibition.:138 In Mobile v. Bolden (1980), the Supreme Court held that Section 2, as originally enacted in 1965, prohibited laws only that were enacted or operated for a discriminatory purpose. In 1982, Congress amended Section 2 to create a "results" test, which prohibits any voting law that has a discriminatory effect irrespective of whether the law was enacted or operated for a discriminatory purpose. The 1982 amendments also provided that the results test does not guarantee protected minorities a right to proportional representation.
When determining whether a jurisdiction's election law violates this prohibition, courts have relied on factors enumerated in the Senate Judiciary Committee report associated with the 1982 amendments ("Senate Factors"), including (1) the history of official discrimination in the jurisdiction that affects the right to vote; (2) the degree to which voting in the jurisdiction is racially polarized; (3) the extent of the jurisdiction's use of majority vote requirements, unusually large electoral districts, prohibitions of bullet voting, or other devices that tend to enhance the opportunity for discrimination in voting; (4) whether minority candidates are denied access to the jurisdiction's candidate slating processes, if any; (5) the extent to which minority group members in the jurisdiction are discriminated against in socioeconomic areas, such as education, employment, and health; (6) whether overt or subtle racial appeals in campaigns exist; (7) the extent to which minority candidates have won elections; (8) the degree that elected officials are unresponsive to the concerns of the minority group; and (9) whether the policy justification for the challenged law is tenuous. The report indicates not all or a majority of these factors need to exist for an electoral device to result in discrimination, and it also indicates that this list is not exhaustive, allowing courts to consider additional factors at their discretion.:344:28-29
Section 2 prohibits racial or language discrimination that results in "vote denial", in which people are denied the opportunity to cast a ballot or to have their vote properly counted, or "vote dilution", in which the effectiveness or strength a person's vote is diminished.:691-692 Most Section 2 litigation has concerned vote dilution, especially claims that the structure of a jurisdiction's electoral districts or use of at-large/multimember elections operates to submerge the voting strength of a protected minority group within the jurisdiction,:708-709 preventing the minority group from electing its candidate of choice. The Supreme Court established a legal framework for assessing these "vote dilution by submergence" claims in Thornburg v. Gingles (1986).[a] Under the Gingles test, plaintiffs must show the existence of three preconditions: (1) the racial or language minority group "is sufficiently numerous and compact to form a majority in a single-member district"; (2) the minority group is "politically cohesive" (i.e., its members tend to vote alike); and (3) the "majority votes sufficiently as a bloc to enable it ... usually to defeat the minority's preferred candidate.":50-51 The first precondition is known as the "compactness" requirement and concerns whether a majority-minority district can be created, and the second and third preconditions are collectively known as the "racially polarized voting" or "racial bloc voting" requirement and concern whether the voting patterns of the different racial groups diverge. If a plaintiff proves these preconditions exist, then the plaintiff must additionally show, using the remaining Senate Factors and other evidence, that under the "totality of the circumstances", the jurisdiction's redistricting plan or use of at-large/multimember elections diminishes the ability of the minority group to elects its candidates of choice.:344-345
Subsequent litigation further defined the contours of "vote dilution through submergence" claims. In Bartlett v. Strickland (2009), the Supreme Court held that the first Gingles precondition can be satisfied only if a district can be drawn in which the minority group comprises a majority of voting-age citizens. This means that plaintiffs cannot succeed on a submergence claim in jurisdictions where a protected minority group, despite not being large enough to comprise a majority in a single-member district, is nevertheless sufficiently large to be able to elect their candidates of choice with the help of crossover votes from some members of the majority group. In contrast, the Supreme Court has not addressed whether different protected minority groups can be aggregated to satisfy the Gingles preconditions as a coalition, and lower courts have split on the issue.[b]
The Supreme Court also provided additional guidance on the "totality of the circumstances" test in Johnson v. De Grandy (1994). In that case, the Supreme Court emphasized that the existence of the three Gingles preconditions may be insufficient to prove liability for vote dilution by submergence where other factors weighed against such a determination, especially in lawsuits challenging redistricting plans (as opposed to lawsuits challenging at-large/multimember elections). In particular, the Supreme Court clarified that even where the three Gingles preconditions are satisfied, a jurisdiction is unlikely to be liable for vote dilution if its redistricting plan contains a number of majority-minority districts that is proportional to the minority group's population. In doing so, the Supreme Court held that Section 2 does not require jurisdictions to maximize the number of majority-minority districts. The opinion distinguished this proportionality of majority-minority districts, which allows minorities to have a proportional opportunity to elect their candidates of choice, from proportionality of election results, which Section 2 explicitly does not guarantee to minorities.:1013-1014
An issue regarding the third Gingles precondition remains unresolved. In Gingles, the Court split as to whether plaintiffs must prove that voters engage in racial bloc voting because they are motivated by racial considerations. A plurality said that requiring such proof would violate Congressional intent to make Section 2 a "results" test, but Justice White maintained that the proof was necessary to show that the election scheme caused racial discrimination.:355-357 Since Gingles, lower federal courts have split on the issue as well. Courts of Appeals in the Second Circuit and Fourth Circuit have held that such proof is not a universal requirement for liability but is a relevant additional factor under the "totality of the circumstances" test, while the Fifth Circuit has held that such proof is required as a necessary component of the third precondition.:711-712
Although most Section 2 litigation has involved claims of vote dilution through submergence,:708-709 courts also have addressed other types of vote dilution under this provision. In Holder v. Hall (1994), the Supreme Court held that claims that the size of a governing body, such as a county commission, dilutes minority votes are not cognizable under Section 2. A plurality of Justices reasoned that no uniform, non-dilutive "benchmark" size for a governing body exists, making relief under the Section 2 results test impossible. Another type of vote dilution may result from a jurisdiction's requirement that a candidate be elected by a majority vote. A majority-vote requirement may cause a minority group's candidate of choice, who would have won the election under a simple plurality of votes, to lose after a majority of voters unite behind another candidate in a runoff election. The Supreme Court has not addressed whether such claims are cognizable under Section 2, and lower courts have split on the issue.[c]
In addition to claims of vote dilution, courts have considered vote denial claims brought under Section 2. Lower federal courts have generally held that felon disenfranchisement laws cannot violate Section 2 because, among other reasons, such laws have been given explicit approval in Section 2 of the Fourteenth Amendment.:756-757 A federal district court has held that "dual registration" systems, which require a person to register to vote separately for state elections and federal elections, may violate Section 2 if the system has a racially disparate impact in light of the Senate Factors.:754 In 2013, courts began to consider various challenges to voter ID laws brought under Section 2.
The Act enumerates the following prohibitions:
- Section 10: Prohibits poll taxes as a condition of voting
- Section 11: Prohibits any person from refusing to allow a qualified voter to vote, from refusing to count a vote from a qualified voter, and from using intimidation or coercion against a voter or against someone assisting a voter.
- Section 201: Prohibits any jurisdiction from imposing a "test or device", such as literacy test or a voucher requirement, as a condition of registering to vote.
- Section 202: Restricts residency requirements in Presidential elections by requiring States to allow any citizen to vote, provided that the citizen registered to vote at least 30 days prior to the election.
- Section 203: Requires that jurisdictions with citizens of voting age who number more than 10,000 or who comprise 5% of a single language minority, and whose illiteracy rate (failure to complete the 5th grade) is higher than the national illiteracy rate, to provide voters with election materials and assistance in the language of the applicable minority in addition to English.
Section 3(c) of the VRA contains a "bail in" or "pocket trigger" process by which jurisdictions outside the coverage formula of Section 4(b) that violate other provisions of the Voting Rights Act may become subject to the special provisions by a federal court order. Unlike Section 5 preclearance, the period of coverage is based on a ruling or consent decree issued by a federal court, and the scope of coverage may be limited to particular types of voting changes. Although the Supreme Court held the coverage formula under Section 4(b) unconstitutional in Shelby County v. Holder, it did not hold Section 3(c) unconstitutional; thus, bailed-in jurisdictions remain subject to Section 3(c) preclearance.
- Section 3 contains several remedies a court may impose on jurisdictions for violating of the Voting Rights Act or other legislation meant to enforce the Fifteenth Amendment. These remedies include the appointment of federal election examiners, the suspension of discriminatory tests and devices, and requiring federal preclearance of changes to voting laws or practices ("bail in").
- Section 12 provides for civil fines and imprisonment of persons violating the VRA and for additional remedies against jurisdictions violating the VRA.
- Section 14 describes the process for bringing an enforcement proceeding.
Section 4(b) contains a "coverage formula" that determines which jurisdictions are subject to the Act's other special provisions (except for the bilingual assistance provision, which contains a different formula). As originally enacted, the first portion of the coverage formula was whether, as of November 1, 1964, the jurisdiction used some form of "test or device" to restrict the opportunity to register and vote (such as a literacy test or a character reference). The second portion was a check of whether less than half of all eligible citizens were registered to vote on November 1, 1964, or that half of all eligible citizens voted in the presidential election of November 1964. Subsequent revisions of the law supplemented it with additional triggering dates in November 1968 and November 1972, which brought more states into coverage. In Shelby County v. Holder (2013), the Supreme Court held the coverage formula unconstitutional.
Section 5 of the Act requires that covered jurisdictions receive federal approval, known as "preclearance", before implementing changes to their election laws. The jurisdiction has the burden of proving that the change does not have the purpose or effect of discriminating on the basis of race or language minority status; if the jurisdiction fails to meet this burden, the federal government will deny preclearance and the jurisdiction's change will not go into effect. The Supreme Court broadly interpreted Section 5's scope in Allen v. State Board of Election (1969), holding that any change in a jurisdiction's voting practices, even if minor, must be submitted for preclearance. The Supreme Court also held that if a jurisdiction fails to have its voting change precleared, private plaintiffs or the Attorney General may sue the jurisdiction in the plaintiff's local district court before a three-judge panel.[d] In these Section 5 "enforcement actions", the court may consider whether the jurisdiction made a covered voting change, and if so, whether the change has been precleared. If the jurisdiction improperly failed to obtain preclearance, then the court may order the jurisdiction to obtain preclearance before implementing the change. However, the court may not consider the merits of whether the change should be approved.:128-129:556:23
Jurisdictions may seek preclearance in one of two ways: by submitting the proposed change to the US Attorney General through an "administrative preclearance" process, or by seeking a declaratory judgment by a three-judge panel of the U.S. District Court for DC through a "judicial preclerance" process. If a jurisdiction seeks administrative preclearance, the Attorney General will consider whether the change has a discriminatory purpose or effect. After the jurisdiction submits the change, the Attorney General has 60 days to interpose an objection to it. The 60-day period may be extended an additional 60 days if the jurisdiction submits additional information after the initial submission. If the Attorney General interposes an objection, then the change is not precleared and may not be implemented.:90-92 The Attorney General's decision is not subject to judicial review, but if the Attorney General interposes an objection, the jurisdiction may still independently seek judicial preclearance, under which the review court will consider the change de novo and may, as a practical matter, override the objection.:559 If a jurisdiction seeks judicial preclearance, it must file a declaratory judgment action against the Attorney General in the U.S. District Court for DC. A three-judge panel of the court then considers whether the voting change has the purpose or effect of discriminating against a racial or language minority. The losing party may appeal directly to the Supreme Court. Court may allow private parties to intervene in judicial preclearance lawsuits.:90:476-477
In several cases, the Supreme Court has addressed the meaning of "discriminatory effect" and "discriminatory purpose" for Section 5 purposes. In Beer v. United States (1976), the Supreme Court held that for a voting change to have a prohibited discriminatory effect, the voting change must result in "retrogression" (backsliding)—that is, the voting change must diminish the ability of a protected minority to exercise its voting rights in comparison to the circumstances that existed before the change was made. Therefore, a change that results in discrimination, but does not result in more discrimination than before the change was made, cannot be denied preclearance for having a discriminatory effect.:283-284 For example, replacing a poll tax with an equally expensive voter registration fee would not constitute a "retrogressive" change even though it may equally result in discrimination.:695 Relying on the Senate Report for the Voting Rights Act, the Court reasoned that the retrogression standard was the correct interpretation of "discriminatory effect" because Section 5's purpose is "to insure that [the gains thus far achieved in minority political participation] shall not be destroyed through new [discriminatory] procedures and techniques.":140-141 The retrogression standard applies irrespective of whether the voting change allegedly causes vote denial or vote dilution.:311
Before 2000, the "discriminatory purpose" prong of Section 5 was understood to mean any discriminatory purpose, which is the same standard used to determine whether discrimination is unconstitutional. In Reno v. Bossier Parish (Bossier Parish II) (2000), the Supreme Court extended the retrogression standard, holding that for a voting change to have a "discriminatory purpose" under Section 5, the change must have been implemented for a retrogressive purpose. Therefore, a voting change intended to discriminate against a protected minority was permissible under Section 5 so long as the change was not intended to increase existing discrimination.:277-278 This change significantly reduced the number of instances in which preclearance was denied on grounds of discriminatory purpose. In 2006, Congress effectively overturned Bossier Parish II by amending the Voting Rights Act to explicitly define "purpose" to include "any discriminatory purpose.":199-200, 207
On June 25, 2013, the Supreme Court held in Shelby County v. Holder that the preclearance coverage formula in Section 4(b) was unconstitutional. Although Section 5 remains valid, without a valid coverage formula, no jurisdiction is currently required to have any of its voting changes precleared under Section 5.
Federal examiners and observers
Until the 2006 amendments to the Act,:50 Section 6 allowed the Office of Personnel Management (formerly the Civil Service Commission) to appoint "federal examiners" to register voters in registration districts where the Attorney General (1) received 20 or more meritorious complaints of discrimination in voting, or (2) has determined a need for examiners exists due to factors such as the discrepancy between white and nonwhite persons registered to vote is reasonably attributable to a violation of the Fifteenth Amendment.:11 Furthermore, in any jurisdiction where examiners are present, the Attorney General may, pursuant to Section 8, notify the Civil Service Commission to appoint "federal observers" observe conduct at polling places during an election, determine whether the jurisdiction has allowed qualified registered voters to actually vote, and determine whether the votes are tabulated properly.:14 In 2006, Congress amended the Act to abolish the provisions concerning federal examiners, instead allowing observers to be independently appointed.:50
The term "bail out" refers to the process by which covered jurisdictions may seek exemption from the coverage formula under Section 4(a). In order to bail out, a covered jurisdiction needs to obtain a declaratory judgment from the District Court for the District of Columbia. Eighteen Virginia jurisdictions not covered by Section 5 Preclearance requirements have successfully "bailed out."
Before August 1984, this process required covered jurisdictions to demonstrate that the voting test that they used immediately before coverage was not used in a discriminatory fashion. The 1982 amendment included two significant changes. First, Congress provided that where a state is covered in its entirety, individual counties in that state may separately bail out. Second, Congress completely redesigned the bailout standard. The post-1984 bailout standard requires that a covered jurisdiction demonstrate nondiscriminatory behavior during the 10 years prior to filing and while the action is pending and that it has taken affirmative steps to improve minority voting opportunities.
On September 22, 2010, the first two jurisdictions outside the state of Virginia—Kings Mountain, North Carolina, and Sandy Springs, Georgia—successfully "bailed out" from Section 5 Preclearance requirements. On November 15, 2012, New Hampshire sued to "bail out" from the requirements, which were originally imposed on ten towns that used a literacy test and had voting disparities when the Act was passed, and prevailed on March 1, 2013.
In Northwest Austin Municipal Utility District No. 1 v. Holder (2009), the Supreme Court ruled that political subdivisions that do not register voters have the ability to bail out.
The law had an immediate remedial effect on racial discrimination in voting. By the end of 1965, approximately 250,000 African Americans registered to vote, and one-third of them were registered by federal examiners. By the end of the next year, a majority of African American residents were registered to vote in 9 of the 13 southern states.
In 2006, the United States Commission on Civil Rights reviewed the Justice Department Preclearance record and found that the percentage of DOJ objections to submitted changes has declined markedly throughout the 40-year period of the Act: from 5.5 percent in the first period to 1.2 percent in the second, and to 0.6 percent in the third. Over the 10 years prior to the review, the overall objection rate was so low as to be practically negligible, at less than 0.1 percent. The Commission's two Democratic members dissented from the report, charging that the Commission had "abandon[ed] the field of battle."
Section 2 results test
The constitutionality of Section 2, which contains a general prohibition on discriminatory voting laws, has not been squarely addressed by the Supreme Court. As amended in 1982, Section 2 prohibits any voting practice that has a discriminatory effect, irrespective of whether the practice was enacted or is administered for the purpose of discriminating. This "results test" contrasts with the Fourteenth and Fifteenth Amendments, both of which directly prohibit only purposeful discrimination. Given this disparity, whether the Supreme Court would uphold the constitutionality of Section 2 as appropriate legislation passed to enforce the Fourteenth and Fifteenth Amendments, and under what rationale, remains unclear.:758–759
In Mississippi Republican Executive Opinion v. Brooks (1984), the Supreme Court summarily affirmed, without a written opinion, a lower court's decision that Section 2 is constitutional. Chief Justice Burger and Justice Rehnquist dissented, arguing that the question required plenary review. The Supreme Court generally gives less precedential weight to its summary affirmances, but lower courts must respect the Supreme Court's summary affirmances as being as equally binding on them as Supreme Court judgments with written opinions. Thus, in part due to Brooks, lower courts have unanimously upheld the constitutionality of Section 2.:759–760
Coverage formula and preclearance
The Supreme Court has upheld the constitutionality of the Section 5 preclearance requirement in three case. The first case was South Carolina v. Katzenbach (1966), which was decided about five months after enactment of the Voting Rights Act. The Supreme Court held that Section 5 constituted a valid use of Congress's power to enforce the Fifteenth Amendment, reasoning that "exceptional circumstances" of pervasive racial discrimination, combined with the inadequacy of case-by-case litigation in ending that discrimination, justified the preclearance requirement.:334-335:76 The Supreme Court also upheld the constitutionality of the 1965 coverage formula, explaining that it was "rational in both practice and theory" and that the bailout provision provided adequate relief for jurisdictions who may not deserve to be covered.:330:76-77
The Supreme Court again upheld the constitutionality of the preclearance requirement in City of Rome v. United States (1980). The Supreme Court held that because Congress had explicit constitutional power to enforce the Reconstruction Amendments "by appropriate legislation", the Voting Rights Act did not violate principles of federalism. Furthermore, the Supreme Court upheld the "discriminatory effect" prong of Section 5, stating that even though the Fifteenth Amendment directly prohibited only intentional discrimination, Congress could constitutionally prohibited unintentional discrimination to mitigate the risk that jurisdictions may engage in of intentional discrimination. Finally, the Supreme Court upheld the 1975 extension of Section 5 because of the record of discrimination that continued to persist in the covered jurisdictions, and it suggested the temporary nature of the special provisions was a relevant consideration in determining Section 5's constitutionality.:77-78
The final case in which the Supreme Court upheld the constitutionality of Section 5 was Lopez v. Monterey County (1999). In Lopez, the Supreme Court reiterated its reasoning in Katzenbach and Rome, and it upheld as constitutional the requirement that covered local governments obtain preclearance before implementing voting changes that their parent state required them to implement, even if the parent state was not itself a covered jurisdiction.:78
The 2006 extension of Section 5 was challenged in a lawsuit, Northwest Austin Municipal Utility District No. 1 v. Holder (2009). The lawsuit was brought by a municipal water district in Texas, which elects members to a water board. The district does not register voters, nor has it been accused of discrimination. However, it wished to move the voting location from a private home to a public school; the preclearance procedure required it to seek approval from the Justice Department because Texas is a covered jurisdiction under Section 5. The Court did not declare Section 5 preclearance unconstitutional; instead, it interpreted the law to allow any political subdivision covered by Section 5, including those that do not register voters, to obtain exemption from preclearance if it meets the bailout requirements.
On November 9, 2012, the Supreme Court granted certiorari in the case of Shelby County v. Holder originating from Shelby County, Alabama, limited to the question of "whether Congress' decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments, thus violating the Tenth Amendment and Article IV of the United States Constitution". On June 25, 2013, the Supreme Court struck down Section 4(b) of the Act as unconstitutional. The Court reasoned that the coverage formula conflicts with the constitutional principles of federalism and "equal sovereignty of the states" because its disparate treatment of the states is "based on 40 year-old facts having no logical relationship to the present day" and thus is unresponsive to current needs. The Court did not strike down Section 5, but without Section 4(b), no jurisdiction will be subject to Section 5 preclearance unless Congress enacts a new coverage formula. A few hours after the decision, Texas and Mississippi announced they planned to implement voter ID laws that were previously denied preclearance.
Some judges and proponents of racially drawn congressional districts have interpreted Section 2 and Section 5 of the Voting Rights Act as requiring racial gerrymandering in order to ensure minority representation. The United States Supreme Court in Miller v. Johnson (1995) overturned as unconstitutional a 1992 Congressional redistricting plan that had created minority majority districts in Georgia as unconstitutional gerrymander. In Bush v. Vera, the Court in a plurality opinion rejected Texas's contention that Section 5 required racially gerrymandered districts.
- In Gingles, the Supreme Court held that the Gingles test applies to claims that an at-large election scheme results in vote dilution. The Court later held, in Growe v. Emison, 507 U.S. 25 (1993), that the Gingles test also applies to claims that a redistricting plan results in vote dilution through the arrangement of single-member districts.:1006
- The Courts of Appeals in the Fifth Circuit, Eleventh Circuit, and Ninth Circuit have either explicitly held that coalition suits are allowed under Section 2 or assumed that such suits are permissible, while those in the Sixth Circuit and Seventh Circuit have rejected such suits.:703
- The Court of Appeals for the Second Circuit has held that challenges to majority-vote requirements under Section 2 are not cognizable, while the Eastern District of Arkansas held the opposite.:754-755
- The Supreme Court subsequently held that plaintiffs may alternatively bring Section 5 enforcement actions in state courts.:534
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