Politics and Lawsuits

The Voting Rights Act was enacted to make “the promise of the right to vote under the 15th Amendment of the U.S. Constitution a reality, ninety-five years after [its] passage”. Under the Voting Rights Act of 1965, sixteen states are required to submit any redistricting plans to the U.S. Department of Justice for preclearance. Preclearance is defined as the process of seeking U.S. Department of Justice approval for all changes related to voting. Section 5 of the Act requires that the United States Department of Justice or a three-judge panel of the United States District Court for District of Columbia “preclear” any attempt to change “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting…” in any “covered jurisdiction”.

In other words, the Act requires that areas with a history of voting discrimination and low turnout submit and receive approval for any voting change, including redistricting, before implementing the change. This process was designed to reduce discrimination, to increase voter turnout, and to ensure that each and every citizen has equal power to elect their preferred representatives. Accordingly, the Act banned for five years the use of discriminatory literacy tests and similar devices for determining eligibility to vote, or to register to vote, in those areas of the country (all in the South) identified by a special coverage formula contained in Section 4 of the act. Congress converted this into a nationwide, temporary ban in 1970, and enacted a permanent nationwide ban in 1975.

States whose redistricting plans require preclearance are: Alabama, Alaska, Arizona, California, Florida, Georgia, Louisiana, Michigan,  Mississippi, New Hampshire, New York, North Dakota, South Carolina, South Dakota, Texas, and Virginia, but not Colorado car accident laws as expected. States that want to obtain preclearance must demonstrate that a proposed voting change does not have the purpose or effect of discriminating against an ethnic or “language minority group”, which includes African Americans and “persons who are American Indian, Asian American, Alaskan Natives, or of Spanish heritage”. The image below from the Department of Justice shows the states under jurisdiction and areas that successfully bailed out.

Jurisdictions may seek exemption from Section 5 coverage by going through a “bail out”. In order to bail out, a covered jurisdiction has to obtain a declaratory judgment from the District Court for the District of Columbia. The 1982 amendment to VRA included two significant changes to the “bail out” process. First change is that individual counties in a state that is under jurisdiction may separately bail out. Second change is that a covered jurisdiction must 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. Eighteen Virginia jurisdictions, one North Carolina jurisdiction, and one Georgia jurisdiction have successfully bailed out.

Section 5 of the Voting Rights Act is a temporary provision that has been renewed four times since its original passage in 1965. Section 5 was renewed in 1970, 1975, 1982, and 2006. In July 2006, 41 years after the Voting Rights Act passed, Section 5 and other temporary provisions of the Act were renewed for another additional 25 years with bi-partisan support. The bill to renew the Act was passed by the U.S. House of Representatives by a vote of 390-33, with support from Republican House leadership, led by Judiciary Committee Chairman F. James. Sensenbrenner, Jr.. The U.S. Senate passed the bill 98-0. President George W. Bush signed the bill on July 27, 2006.

Despite the overwhelming 2006 vote in support of renewal of the Voting Rights Act, some have criticized the Act. Representative Lynn Westmoreland (R-Ga) said, “Congress is declaring from on high that states with voting problems 40 years ago can simply never be forgiven, that Georgians must eternally wear the scarlet letter because of the actions of their grandparents and great-grandparents… We have repented and we have reformed.” Some suggest that this federal oversight is discriminatory to particular states under its jurisdiction and numerous lawsuits are currently pending challenging the constitutionality of the Act.