Policy Summary: In 2013 the United States Supreme Court issued its decision in the Shelby County v. Holder case. The case was brought seeking to have Sections 4(b) and 5 of the Voting Rights Act of 1965 declared unconstitutional. The Voting Rights Act had been enacted to address racial discrimination in voting that had been a longstanding feature in a number of states, particularly in the Deep South.

Section 4(b) of the Voting Rights Act contained a “coverage formula” which was used to determine which states and political subdivisions would be subject to other provisions in the Act. The formula singled out states that had a long history of racial discrimination in voting. If states had a “test or device” that restricted voting and did not meet statistical parameters regarding the number of voters registered compared to the number of residents eligible to vote in a county then a state became subject to additional obligations under Section 5. Under Section 5, a state had to “pre-clear” with the Federal Government any changes that they wanted to make to their election law. The purpose was to allow the Federal Government a chance to look over the proposed change and make sure that the change was not racially discriminatory in any way. However, a number of states found the federal oversight an overreach of election administration matters that they believed belonged to the states alone. Plaintiffs in Shelby County, Alabama sued but lost in federal district court and on their appeal to the U.S. Court of Appeals. After appeal to the United States Supreme Court, the Court declared Section 4(b) unconstitutional. The Court reasoned that the coverage formula in use applied to facts that existed forty years ago and were not applicable to the present day. Since 4(b) was declared unconstitutional, enforcing the “pre-clearance” process contained in Section 5 became impossible. The result was that states were now free to enact new election laws without having to get approval from the Federal Government.

The John Lewis Voting Rights Advancement Act was first introduced in the House of Representatives as H.R.4 in the 116th Congress (2019 – 2021). No further action was taken on the bill. The bill has not been introduced in the current Congress although a number of Representatives have indicated the bill will be introduced soon and are now scheduling upcoming hearings for the bill when it eventually gets introduced. The bill will likely face an uphill battle in the Senate where most Republicans are opposed to the bill. LEARN MORE

Policy Analysis: While H.R.1 – the For The People Act – seeks to implement much needed reforms to a number of election laws issues (automatic voter registration, absentee ballots, election administration) the John Lewis Voting Rights Advancement Act goes in a different direction and seeks to revive a voter protection procedure that had been rendered obsolete since 2013. The Supreme Court decision in the Shelby County case did not declare the “preclearance” process under Section 5 unconstitutional. What it did was render the coverage formula contained in Section 4(b) unconstitutional. The coverage formula was the necessary first step that got the preclearance process underway. In the aftermath of the Shelby County case states were now free to implement any election change, which is what happened. Many of the new election changes after 2013 were restrictive in nature. Voter ID laws were quickly passed (Texas, North Carolina) which likely would have run into opposition from the federal government had the preclearance process been utilized. Poll closures, voter purges and a reduction in early voting days and hours also followed. What became clear was that states could now, and did, enact election changes which made it more difficult to vote with some measures disproportionately affecting minority communities.

What the John Lewis Voting Rights Advancement Act proposes to do is bring back a proven review process to halt or, at a minimum, scrutinize bills that may have a negative effect on minority communities. The years post – Shelby have shown that the stain of racial discrimination in the service of voter suppression is still present in a number of states. The John Lewis Act responds to the deficiencies that the Supreme Court listed in its Shelby decision. The coverage formula initially enacted deemed a state or political subdivision eligible for preclearance if there was a “test or device,” such as a literacy test, and turnout of registered voters was below 50% of those eligible to vote.  The Court stated that the coverage formula from forty years ago does not speak to current conditions. The John Lewis Act proposes a new formula where instead of a statistic of a number of eligible voters voting a state would now be subject to Section 5 preclearance based on the number of voting rights violations. A state would have to comply with preclearance procedures if the state has had 15 or more voting violations in the prior twenty – five years or 10 or more voting violations of which one was committed by the state itself. Additionally, any political subdivision (local counties) that has had three or more in the prior twenty – five years would also be required to submit to Section 5 preclearance procedures. States that do not exceed the number of violations during this set time period can then apply to a federal district court for a declaratory judgment stating that the state or political subdivision no longer needs to comply with Section 5 preclearance procedures. By knowing what they can avoid in terms of the number of voting rights violations, states can be more cautious in enacting bills that might be counted against them.

This is an important bill, maybe even more than the For The People Act, because it would currently help stem the tide of numerous restrictive voting laws that we have seen the last couple of years. And, it will help stabilize election law in the U.S. by providing guidance on what election laws in the future are permitted and what are not. LEARN MORE, LEARN MORE

Engagement Resources:

Brennan Center for Justice – info on how the John Lewis Voting Rights Advancement Act will help strengthen the Voting Rights Act of 1965.

Indivisible – non – profit group’s infopage on the need for the John Lewis Voting Rights Advancement Act.

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

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