Why no Voting Rights fix?

Part 2

Last week, Church examined how Congress erred in its 2006 renewal of the vitally important Voting Rights Act of 1965 (VRA), leading to the U.S. Supreme Court’s gutting of one of its two crucial provisions described below. Now, he looks at why Congress has not fixed the statute since 2013, and at how the discriminatory practices in the states have changed significantly. Finally, he will touch upon what might be done.


When Congress conducted extensive hearings then voted to renew the VRA’s special provisions in 2006, the tally was unanimous in the Senate (98 to 0) and 390 to 33 in the House. With all that labor and strong sentiment in favor of the measure, why did no one stop to consider whether perhaps the VRA’s special provisions effectuating federal preclearance for changes in the voting rules by certain states with a history of race discrimination no longer were drawn correctly?  The likely answer is that no one saw the need.

Roberts pointed to what had to be done: “Congress may draft another formula based on current conditions.” Why, then, has Congress not followed that advice? Once Trump took office in 2017, the answer was clear. Given his evidently innate aversion for minorities, and the clear political personal disadvantage to creating more black voters, no doubt he would veto any amendment creating more such voters. But given that both houses have been dominated by Republicans during his tenure, he was never called upon to do that. Though the 2006 voting tally would create a veto-proof supermajority now, given present-day Republicans’ near-universal weak-kneed behavior since Trump took over, not nearly enough of them are likely to vote to fix the VRA, even though it plainly is the right thing to do. Even before Trump, Sen. Mitch McConnell, the cleverly underhanded Majority Leader who captured that post in 2015, might well have thwarted any such effort.  That would have given the Congress substantially less than a two-year window to conduct hearings and mend the VRA appropriately; not much time in those polarized times. So, it didn’t happen.

Where did that leave us? Within hours of the Shelby County v. Holder decision, Texas announced a strict new photo ID law for voters. Two other states — Mississippi and Alabama — also began to enforce similar laws that had been barred on account of the VRA’s preclearance requirement. According to a Nov. 2 report by the Brennan Center for Justice at NYU Law School: “As Election Day 2018 approaches, citizens in 24 states are facing new laws making it harder for them to vote than it was in 2010. And in nine of those states, it’s harder to vote than it was in 2016.” Among these, North Carolina put into effect restrictions on early voting. Such restrictions particularly affect African-American voters, who may well be hourly-wage employees who find it especially difficult to get to the polls on Election Day. In North Dakota, Native Americans are required to produce an ID with a street address, even though on reservations many have only a P.O. Box.    

Since Shelby County v. Holder, according to “Blocking the Ballot Box,” an Oct. 28 piece in The New York Times Sunday Review, “state and local governments that formerly had to approve their voting changes with the federal government, like Georgia and Texas, have closed 20 percent more polling places per capita than other states have, many in neighborhoods with large minority populations.” 

“Purging” is the process by which election officials seek to remove ineligible names from voter registration lists. When done correctly, the result is salutary in that voting rolls become up-to-date and accurate. When done improperly, purges exclude legitimate voters. Another Brennan Center study found that, during the past five years, four states had engaged in illegal purges, and another four had put unlawful purge rules into place.  

Various tactics are available for diluting the votes of racial minorities.  So-called “second generation barriers” to minority voting attenuate the impact of minority votes rather than directly attempting to block access to the ballot. Racial gerrymandering is such a barrier, as is the adoption of at-large rather than district-by-district voting in cities with a sizable black minority. Or a city could dilute the effect of black votes by incorporating white majority areas into city limits.   

Given the divided Congress we soon will have and a hostile president, what might be done to remedy this parlous situation? Perhaps nothing, a pessimist might say. But who knows what might be achieved with a strong Democratic majority in the House? As the Brennan Center’s Nov. 2 essay points out, “We faced even worse voter suppression schemes before the 1965 [VRA], and we responded by making our democracy stronger.” Can’t we do it again?


Charles Church of Salisbury is a human rights lawyer.