By Vishal Agraharkar, Brennan Center for Justice
August 6 marks the 50th anniversary of the signing of the nation’s most effective piece of civil rights legislation. The Voting Rights Act of 1965 was critical to ending the harshest forms of voting discrimination of the Jim Crow era, and resulted in enormous gains in black voter registration and political representation, particularly in the South.
The anniversary is bittersweet, however. Two years ago, an essential provision of the Act was gutted by the Supreme Court in the case Shelby County v. Holder. To honor the original promise of the Voting Rights Act, Congress must act now to restore its core provision and ensure citizens can vote free of discrimination heading into the 2016 election.
Section 5 of the Voting Rights Act required areas with an ongoing history of racial discrimination to obtain federal approval before changing their voting practices. This blocked discriminatory laws before they could ever take effect. Since the Supreme Court’s 2013 ruling, states have pressed forward with voting policies that were previously blocked or deterred by Section 5, or enacted new policies that might have been blocked if Section 5 were still effective.
This is just the latest chapter in the war on voting. In the last five years, 21 states have new restrictions on the vote in place. In 15 states, these rules — ranging from voter registration rollbacks to early voting cuts to voter ID requirements — will be in effect for the first time in a presidential election in 2016.
Several of these laws have been challenged in court. But this year, there are two major suits seeking to overturn discriminatory laws enacted after the high court hobbled the Voting Rights Act. Either could end up back before the Supreme Court — and could determine the future of the Act’s remaining voting protections.
The first is in Texas, where just hours after the Supreme Court rendered Section 5 inoperable,then-Attorney General Greg Abbott put into effect a strict photo ID law that had been previously blocked by Section 5 as discriminatory. The Brennan Center and others are fighting the law under the remaining provisions of the Act, as well as the Constitution. Although a federal district court struck down the law last year, finding more than 600,000 registered voters did not have the required photo ID, it was allowed to stay in effect while an appeal is pending, disenfranchising many legitimate voters in the 2014 election. The case is now awaiting a decision by an appellate court and could be heard by the Supreme Court as early as next year.
In North Carolina, a three-week trial wrapped up Friday over a sweeping restrictive law passed shortly after the Supreme Court’s 2013 ruling. Among other things, the North Carolina law cut early voting days, eliminated same-day registration and pre-registration for high school students, and imposed a strict photo ID requirement (though the ID provision was recently softened and was not part of the trial). If these restrictions are allowed to stand, hundreds of thousands of North Carolina voters could be affected.
These cases demonstrate one of the consequences of the Supreme Court’s decision in Shelby County. Without Section 5, states have moved forward with voting restrictions that would otherwise have previously been blocked. In its place, we are left with time-consuming and costly litigation, which allows discriminatory laws to remain on the books while they are challenged, produces uncertainty for election officials, and creates confusion and disenfranchisement for voters.
Congress can eliminate these problems by updating the Voting Rights Act, preserving its promise of equal voting while also satisfying the concerns of the Supreme Court. Fortunately, two such bills have been introduced in Congress — the Voting Rights Amendment Act and the Voting Rights Advancement Act.
The best way to honor the 50th anniversary of the Voting Rights Act — and the heroes who fought for it — is not for the legislation to languish. It is to renew the Act for another generation and revive its most effective provision. At the same time, the courts in Texas and North Carolina should reject discriminatory new laws. Rather than turning back the clock on voting rights, we should aim to modernize voting so every eligible American can participate — without discrimination or disenfranchisement.
Agraharkar is counsel in the Democracy Program at the Brennan Center for Justice at NYU School of Law.