Voting Rights Act of 1965

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Voting Rights Act of 1965
Great Seal of the United States.
Long title An act to enforce the fifteenth amendment to the Constitution of the United States, and for other purposes.
Colloquial acronym(s) VRA
Nickname(s) Voting Rights Act
Enacted by the  89th United States Congress
Effective August 6, 1965
Citations
Public Law 89-110
Stat. 79 Stat. 437
Codification
Title(s) amended 42—The Public Health and Welfare
U.S.C. sections created 42 U.S.C. §§ 19731973bb-1
Legislative history
  • Introduced in the Senate as S 1564 by Mike Mansfield (DMT) and Everett Dirksen (RIL) on March 17, 1965
  • Committee consideration by: Judiciary
  • Passed the Senate on May 26, 1965 (77-19)
  • Passed the House with amendment on July 9, 1965 (333-85)
  • Reported by the joint conference committee on July 29, 1965; agreed to by the House on August 3, 1965 (328-74) and by the Senate on August 4, 1965 (79-18)
  • Signed into law by President Lyndon B. Johnson on August 6, 1965
Major amendments
  • Voting Rights Act Amendments of 19701
  • Voting Rights Act of 1965, Amendments of 19752
  • Voting Rights Act Amendments of 19823
  • Voting Rights Language Assistance Act of 19924
  • Fannie Lou Hamer, Rosa Parks, Coretta Scott King, César E. Chávez, Barbara C. Jordan, William C. Velásquez, and Dr. Hector P. Garcia Voting Rights Act Reauthorization and Amendments Act of 200656
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)
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. §§ 19731973bb-1)7:372 is a landmark piece of federal legislation in the United States that prohibits discrimination in voting.8 It was signed into law by President Lyndon B. Johnson during the height of the American Civil Rights Movement, and Congress later amended the Act five times to expand its protections.89 Designed to enforce the voting rights guaranteed by the Fourteenth and Fifteenth Amendments to the United States Constitution, the Act allowed for a mass enfranchisement of racial minorities throughout the country, especially in the South. According to the U.S. Department of Justice, the Act is widely considered to be the most effective piece of civil rights legislation ever enacted in the United States.10

The Act establishes extensive federal oversight over elections. Echoing the language of the Fifteenth Amendment, Section 2 of the Act prohibits any state or local government from imposing any "voting qualification or prerequisite to voting, or standard, practice, or procedure ... in a manner which results in a denial or abridgement of the right to vote on account of" race or language minority status.11 Additionally, the Act specifically outlaws literacy tests and similar devices that were historically used to disfranchise minorities.

The Act also contains "special provisions" that apply only to certain jurisdictions, such as a requirement that jurisdictions containing significant language minority populations provide bilingual ballots and other election materials. A core special provision is Section 5, which prohibits jurisdictions from implementing any change affecting voting without first obtaining approval from the U.S. Attorney General or a three-judge panel of the U.S. District Court for D.C. that the change does not have the purpose or effect of discriminating against protected minorities. This process is called "preclearance."12 Section 5 and most other special provisions apply to jurisdictions encompassed by the Act's "coverage formula", which is prescribed in Section 4(b). The formula was originally designed to encompass jurisdictions that engaged in the most egregious voting discrimination in 1965, and Congress updated the formula in 1970 and 1975. However, in Shelby County v. Holder (2013), the United States Supreme Court struck down the coverage formula as unconstitutional, reasoning that it is no longer responsive to current conditions.13 The Court did not strike down Section 5, but without Section 4(b), no jurisdiction may be subject to Section 5 preclearance unless Congress enacts a new coverage formula.14

Background

As initially ratified, the United States Constitution granted each state complete discretion to determine voting qualifications for its residents.1516:50 After the Civil War, the three Reconstruction Amendments were ratified, which limit this discretion: the Thirteenth Amendment (1865) prohibits slavery, the Fourteenth Amendment (1868) grants citizenship to all people "born or naturalized in the United States" and guaranteed citizens rights of due process and equal protection, and the Fifteenth Amendment (1870) explicitly limits state power to determine voter qualifications by providing "[t]he right of citizens of the United States 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 granting Congress the power to enforce their provisions through appropriate legislation.17

After the ratification of the Reconstruction Amendments, Congress enacted the Enforcement Acts to enforce them. The Enforcement Act of 1870 criminalized the obstruction of a person's voting rights, and the first Enforcement Act of 1871 provided federal supervision of the electoral process, including voter registration. However, in 1875 the Supreme Court stuck down parts of this legislation as unconstitutional in United States v. Cruikshank and United States v. Reese.18:31019:97 After Reconstruction ended in 1877, enforcement of these laws became erratic, and in 1894, Congress repealed most of their provisions.18:310

Southern states generally sought to disfranchise racial minorities during and after Reconstruction. From 1868 to 1888, electoral fraud and violence throughout the South suppressed the African American vote.20 From 1888 to 1908, Southern states legalized racial minority disfranchisement by enacting Jim Crow laws; most Southern states amended their constitutions and passed legislation to impose literacy tests, poll taxes, property ownership requirements, "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 ineligible to vote).1820 During this period, the Supreme Court generally upheld state efforts to discriminate against racial minorities. In Giles v. Harris (1903), the Court held that irrespective of the Fifteenth Amendment, the judiciary did not have the remedial power to force states not to intentionally deny racial minorities the right to register to vote.19:100

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 voting rights legislation since Reconstruction: the Civil Rights Act of 1957. This legislation 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.10

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 in each of the state's counties, comparing thousands of applications in a process that could take thousands of hours to complete. The Department's efforts were hampered by resistance from local election officials, who would disingenuously claim to misplace the voter registration records of racial minorities, remove racial minorities from the electoral rolls, and resign so that voter registration ceased. Moreover, the Department often needed to appeal voting rights lawsuits multiple times before the judiciary would provide relief because many federal district court judges opposed efforts to protect the suffrage of racial minorities. Thus, between 1957 and 1964, the African American voter registration rate in the South improved only marginally despite the Department pursuing voting rights litigation 71 times.19:514

In 1964, Congress responded to rampant discrimination against racial minorities 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, prohibiting registrars from rejecting voter registration applications due to small errors, and creating a rebuttable presumption that persons who attained a sixth-grade education were sufficiently literate to vote.16:972122 However, despite lobbying from civil rights leaders, the Act did not contain a comprehensive remedy for voting discrimination.23:254 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".16:48–50 However, Johnson did not publicly push for the legislation at the time; 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 particularly concerned that championing voting rights would endanger the passage of his desired Great Society reforms by angering Southern Democrats in Congress.16:48, 50–52

Following the 1964 elections, civil rights organizations such as the Southern Christian Leadership Conference (SCLC) and the Student Nonviolent Coordinating Committee (SNCC) pushed for federal action to protect the voting rights of racial minorities despite the resistance of local officials.23:254–255 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."23:255

In January 1965, Martin Luther King, Jr., James Bevel,2425 and other civil rights leaders organized several voting-rights demonstrations in Selma that led to violent clashes with police. These marches received attention in the national press and drew attention to the issue of voting rights. 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.23:259–261 While King was in prison, Malcolm X briefly visited Selma on February 4 at SNCC's invitation. He gave a militant speech in which he said that many people did not believe in King's nonviolent approach;23:262 later, he privately said that his goal was to frighten white people into supporting King's efforts.16:69 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.23:262 With the nation paying increasing attention to Selma and voting rights, President Johnson reversed his decision to delay voting rights legislation, and on February 6, he announced he would send a voting rights proposal to Congress.16:69 However, he did not reveal the proposal's content or when it would come before Congress.23:264

On February 18, in Marion, Alabama, state troopers violently broke up a nighttime voting-rights march in which officer James Bonard Fowler shot young protester Jimmie Lee Jackson, who was protecting his mother. Jackson died of his injuries on February 26.2623:265 Spurred by this event, and at the initiation of Bevel,23:267242527:81-86 on March 7 SCLC and SNCC began the Selma to Montgomery marches in which residents of Selma proceeded to Alabama's capital, Montgomery, to present Governor George Wallace with their grievances. On the first march, 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.19:515

In the wake of the events in Selma, President Lyndon B. Johnson, addressing a joint session of Congress on March 15, called upon legislators to enact expansive voting rights legislation. He famously concluded his speech with the words "we shall overcome", a theme of the American Civil Rights Movement.23:27828 The legislation that Johnson referred to was the Voting Rights Act of 1965, which was introduced in Congress two days later while civil rights leaders, now under the protection of federal troops, led a march of 25,000 people from Selma to Montgomery in support of voting rights.19:51623:279, 282

Legislative history

refer to caption
The first page of the Voting Rights Act

Original bill

Senate

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 had worked with Attorney General Katzenbach to draft the bill's language.29 Although Democrats held two-thirds of the seats in both chambers of Congress after the 1964 Senate elections,16:49 Johnson worried that Southern Democrats would try to use the filibuster to weaken or defeat the legislation,16:95 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 the marchers in Selma on Bloody Sunday.16:95–96 Given Dirksen's key role in helping Katzenbach draft the bill, it became known informally as the "Dirksenbach" bill.16:96 After Mansfield and Dirksen introduced the legislation, 64 Senators agreed to cosponsor it with them.16:150

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.19:520, 524 The bill also authorized the assignment of federal examiners to register voters, and of federal observers to monitor elections, to covered jurisdictions that engaged in egregious discrimination. The bill set these provisions, known collectively as "special provisions", to expire after five years.19:52030:5–6

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 cast a ballot in the November 1964 presidential election.18:317 Few jurisdictions outside of the Deep South were encompassed by this formula. To appease legislators who felt that the bill unfairly targeted Southern jurisdictions, the bill included a general prohibition on racial discrimination in voting that applied nationwide.31:1352 The bill also included provisions allowing a covered jurisdiction to "bail out" of coverage by proving in federal court that it had not used a "test or device" for a discriminatory purpose or with a discriminatory effect during the 5 years preceding its bailout request.30:6 Additionally, the bill included a "bail in" provision, under which federal courts could subject discriminatory non-covered jurisdictions to remedies contained in the special provisions.3233:2006–2007

The bill was first considered by the Senate Judiciary Committee, whose chair, Senator James Eastland (D-MS), opposed the legislation 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.16:150 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 legislation as unconstitutional.19:52123:285 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' influential congressional delegations.19:521 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% 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 said he would 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.16:152–153

On April 22, the full Senate started debating the bill. Dirksen spoke first on the bill's behalf, 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."16:154 Senator Strom Thurmond (R-SC) retorted that the bill would lead to "despotism and tyranny", while Senator Sam Ervin (D-NC) argued that the bill was unconstitutional because it deprived states of their right under Article I, Section 2 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 federal examiners to administer voter registration. This amendment overwhelmingly failed, with 42 Democrats and 22 Republicans voting against it.16:154–156 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"19:52130:2,34 and a separate provision declaring that the poll tax was being used in some jurisdictions to unconstitutionally discriminate. An amendment offered by Senator Robert Kennedy (D-New York) to grant the right to vote to English-illiterate citizens who had achieved at least an 8th-grade education in a non-English-speaking school also passed by 48-19. Southern legislators offered a series of amendments to weaken the bill, all of which failed.16:159

On March 25, the Senate voted for cloture 70-30, thus overcoming the threat of filibuster and limiting further debate on the bill.35 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.16:16136

House of Representatives

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President Johnson, Martin Luther King, Jr. and Rosa Parks at the signing of the Voting Rights Act on August 6, 1965.
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 committee's ranking Republican, 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.16:162 The bill was then considered by the Rules Committee, whose chair, Howard W. Smith (D-VA), opposed the bill and delayed its consideration until June 24. Under 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 6.16:163

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.16:162–164 The Johnson administration viewed the McCulloch-Ford bill as a serious threat to passage of the Voting Rights Act. However, support for the McCulloch-Ford bill dissipated after William M. Tuck (D-VA) publicly stated that the reason H.R. 7896 was better than the Voting Rights Act was because the latter would legitimately ensure that African Americans 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 9.37 Later that night, the House passed the Voting Rights Act by a 333-85 vote (Democrats 221-61, Republicans 112-24).16:163–16538

Conference committee

Because the Senate and House versions of the bill differed, the chambers appointed a conference committee to resolve the differences. The major contention concerned the poll tax provisions; 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 ended the stalemate, and on July 29, the conference committee reported its version out of committee.16:166–167 The House approved this conference report version of the bill on August 3 by a 328-74 vote (Democrats 217-54, Republicans 111-20),39 and the Senate passed it on August 4 by a 79-18 vote (Democrats 49-17, Republicans 30-1).16:1674041 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.16:168

Amendments

Congress enacted major amendments to the 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. In 1970 and 1975, Congress updated the coverage formula.42 In 1982, Congress expanded Section 2's general prohibition of discriminatory voting laws to ban any voting practice that had a discriminatory effect, irrespective of whether the practice was enacted or operated for a discriminatory purpose.19:644–645

1970

Anticipating the expiration of the Act's special provisions in 1970, Congress held extensive hearings on whether the 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; between 1965 and 1970, covered jurisdictions had made merely 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.30:6, 8

President Richard Nixon's administration, which generally disliked civil rights laws but hoped to politically capitalize on the alienation of Southern white voters from the Democratic Party that the 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,16:204–205 but it was rejected by the Senate, which crafted its own compromise bill. The Senate passed its version by a 64-12 vote, and the House then passed it by a bipartisan 237-132 vote.43:686–687 The legislation was enacted on June 17, 1970 as the Voting Rights Act Amendments of 1970.44 President Nixon signed it into law on June 22.16:204–205, 207

Through this legislation, Congress extended the special provisions for five years.30:8 Congress also expanded 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 Southern states.42 Simultaneously, Congress amended the bailout provision to require covered jurisdictions seeking bailout to prove that they had not used a test or device in a discriminatory manner in the ten-year period preceding their bailout request, an increase from the original five-year period requirement. Congress also expanded the ban on using tests or devices to the entire nation.30:6, 8

Congress also add new provisions to the Act. Two new provisions exclusively regulated presidential elections: one created uniform rules for voter registration and absentee voting, and the other prohibited states from applying their own durational residency requirements as voting qualifications.30:7 Influenced by the draft of males at least 18 years of age to fight in the Vietnam War, Senator Ted Kennedy convinced Congress to add a provision guaranteeing citizens at least 18 years of age the right to vote in federal, state, and local elections.16:205–206 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.45 Later that year, the Supreme Court, in Oregon v. Mitchell (1970),46 struck down the part of the provision lowering the voting age in state elections as unconstitutional; the Court upheld only the part of the provision that lowered the voting age in federal elections. The decision precipitated the ratification of the Twenty-sixth Amendment the following year, which lowered the voting age in all elections to 18.19:60

1975

Congress revisited the 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 Act, reflecting an expanded consensus in Congress that the law 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.16:209–210 After conducting several hearings, Congress passed legislation amending the Act; the Senate approved the amendments by a 77-12 vote, and the House of Representatives by a 346-56 vote.43:706 President Ford signed the amendments into law on August 6, 1975.16:21447

The amendments extended the Act's special provisions for seven years. Congress chose seven years to avoid having to reconsider the special provisions during the 1980s reapportionment process.19:624 Relatedly, Congress amended the bailout provision to require covered jurisdictions seeking bailout to prove that they had not used a test or device in a discriminatory manner in the 17-year period preceding their bailout request.31:1349 Congress also expanded the coverage formula by adding new dates in 1972 as triggering dates, which brought more jurisdictions into coverage.42 Furthermore, Congress made permanent the nationwide prohibition on tests or devices.30:9

The 1975 amendments also expanded voting rights for minority groups that traditionally had fallen outside the Act's protections. 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.31:1350 After Congress heard testimony of language discrimination in voting, Congresswoman Barbara Jordan (D-TX) successfully led an effort to amend the Act to protect language minorities.16:211 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 5% of the voting-age population. This in turn expanded the coverage formula to reach states such as Texas that Congress wanted to cover. Congress also enacted bilingual election requirements, which require election officials in certain jurisdictions to provide ballots and voting information in the language of language minority groups.19:57, 521

1982

As the special provisions neared expiration again, Congress reconsidered the Act in 1982. Organizations in The Leadership Conference on Civil 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 Act's general prohibition on discriminatory voting laws.31:1351–1353 Congressional opponents of the amendments had little support for their positions outside of Congress.31:1387

The House of Representatives, which was the first chamber to consider amendments,31:1380 conducted seven weeks of hearings on amendatory legislation at which over 100 witnesses testified, most of whom supported extending the Act's special provisions by at least 10 years.30:17 President Ronald Reagan's administration largely stayed out of the debate as the legislation worked its way through the House. However, President Reagan did indicate he supported replacing the coverage formula with a nationwide preclearance requirement.31:1384–1385 The House ultimately passed legislation maintaining the coverage formula and permanently extending the special provisions.31:1383 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.31:1383–1384 Furthermore, the Reagan Administration announced its support for only a 10-year extension of the special provisions.31:1386 The Senate eventually compromised on maintaining the coverage formula unchanged and extending the special provisions by 25 years,31:1415 except for the Section 203(c) bilingual election requirement, which was extended for seven years.48:23 The Senate also agreed to liberalize the bailout procedure to allow a covered state or local government to escape coverage by proving to the U.S. 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.19:523 The bailout procedure was also amended to allow a local government to bail out of coverage even if its parent state was covered.48:2349

The provision Congress most intensely focused on amending was Section 2, which prescribes a general prohibition of discriminatory voting laws.31:1352 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 maintained 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.50:60–61 The decision had a major effect on voting rights litigation; civil rights lawyers decided not to pursue many planned cases, and courts overturned several judgments that were previously entered in favor of plaintiffs. This prompted nationwide outrage that weighed heavily on Congress as it considered amending the Act in 1982.51:149

During the nine days of Senate hearings concerning whether to amend the Act, Section 2 was the primary focus31:1389—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 operated for a discriminatory purpose. President Reagan opposed creating a results test because its impact would be uncertain.31:1388–1389 Furthermore, 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.31:1392 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.31:1414–1415 The House passed this version of the bill by a 389-24 vote, and the Senate passed it by an 85-8 vote.43:70752 President Reagan signed the legislation into law on June 29, 1982.16:231 The creation of the Section 2 results test shifted the majority of litigation brought under the Voting Rights Act from claims of Section 5 violations to claims of Section 2 violations.19:645

1992

As the bilingual election requirement in Section 203(c) neared expiration in 1992, Congress considered legislation to extend and expand it. Representative José E. Serrano (D-NY) introduced legislation,53 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 Section 203(c) bilingual election requirement to cover jurisdictions containing at least 10,000 persons of any one of the covered language minorities.54:50–51 This reached major cities such as Philadelphia, San Francisco, and Los Angeles.55:1486–1487 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 Indian reservations.56:225–226

This legislation received more Congressional opposition than the 1982 amendments did, most of it from Republicans.55 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.48:26 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 bilingual provisions. These amendments failed, and Congress passed the legislation with mostly Democratic support;55 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, 1992.53

2006

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President George W. Bush signs the reauthorization of the Voting Rights Act in July 2006.

Congress reconsidered the Act in 2006 as the special provisions were due to expire in 2007. Civil rights organizations advocated for the renewal and strengthening of the special provisions.57:206 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.58:180 Furthermore, conservatives believed that the primary beneficiaries of the special provisions were African Americans, who overwhelmingly and increasingly voted for Democratic Party candidates.57:207 However, Republicans were 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.57:208 Republicans also recognized that the Act often helped Republican candidates win by requiring jurisdictions to pack Democratic-leaning racial minorities into few electoral districts. In addition, House Judiciary Committee Chair Jim Sensenbrenner (R-WI) had a strong desire to reauthorize the special provisions, and he led 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.58:180–181

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.58:181–182 Congress's evidentiary record of voting discrimination was viewed as particularly important because Congress believed that according to the Supreme Court case Boerne v. Flores (1997) and its progeny, Congress needed to demonstrate that legislation passed to enforce the Reconstruction Amendments was "congruent and proportional" to remedying or preventing constitutional violations. To make this showing, the committee needed to assemble evidence to demonstrate that the special provisions were generally successful in combating racial discrimination in voting, 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 as constitutional, the committee decided to reauthorize the special provisions without amending the coverage formula.58:192–194 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.58:195

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 2006.5960 The bill proposed to extend the special provisions by 25 years and keep the coverage formula unchanged. The bill also proposed to amend the Act to overturn two recent Supreme Court cases: Reno v. Bossier Parish School Board (2000),61 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),62 which established a broader test for determining whether a voting change had an impermissible effect under Section 5 than assessing only whether a minority group could elect its preferred candidates.58:207–208 While passage of the bill was virtually certain, a few Republican 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 for long-past discrimination.6364 Another group of 80 legislators signed a letter originated by Congressman Steve King (R–IA) arguing that the Act's bilingual election requirements constituted costly unfunded mandates.65 All proposed amendments to the bill failed, and the House passed the bill on July 13, 2006 by a 390-33 vote.60

Shortly thereafter, the Senate unanimously passed the bill without amendment on July 20, 2006 by a 98–0 vote.66 However, in unprecedented event for a bill that passed unanimously out of committee, Senators of only one political party, Republicans, signed onto the bill's Senate committee report,58:178 and the report was not filed until six days after the bill's passage. The Senate report differed in significant ways from the House report, and in their own statement, Senate Democrats objected to parts of the Senate report that they believed highlighted evidence that could jeopardize the bill's constitutionality.58:186–189 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.66 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 civil rights leaders.66

Provisions

The Act contains two types of provisions: "general provisions", which apply nationwide, and "special provisions", which apply to only certain states and local governments.67:1 Most of both types of provisions are designed to protect the voting rights of racial and language minorities, the latter of which the Act defines as "persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage."68 The Act's provisions have been colored by numerous judicial interpretations and Congressional amendments.

General provisions

General prohibition of discriminatory voting laws

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Final page of the Voting Rights Act, signed by President Johnson, the President of the Senate, and the Speaker of the House

Section 2 generally prohibits voting discrimination based on race, color, or language minority status.48:37 The Supreme Court has allowed private plaintiffs to sue to enforce this prohibition.69:138 In Mobile v. Bolden (1980), the Supreme Court held that Section 2, as originally enacted in 1965, prohibited only those laws that were enacted or maintained for a discriminatory purpose.50 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 maintained for a discriminatory purpose.7071:3 The 1982 amendments provided that the results test does not guarantee protected minorities a right to proportional representation.72

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 on 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.72:34473:28–2974

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 strength or effectiveness a person's vote is diminished.75:691–692 Most Section 2 litigation has concerned vote dilution, especially claims that a jurisdiction's redistricting plan or use of at-large/multimember elections prevents minority voters from casting sufficient votes to elect their preferred candidates.75:708–709 An at-large election can dilute the votes cast by minority voters by allowing a cohesive majority group to win every legislative seat in the jurisdiction,76:221 and redistricting plans can be gerrymandered to dilute votes cast by minorities by "packing" high numbers of minority voters into a small number of districts or "cracking" minority groups by placing small numbers of minority voters into a large number of districts.77

In Thornburg v. Gingles (1986), the Supreme Court used the term "vote dilution through submergence" to describe claims that a jurisdiction's use of an at-large election system or gerrymandered redistricting plan diluted minority votes, and it established a legal framework for assessing such claims under Section 2.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."79:50–51

The first precondition is known as the "compactness" requirement and concerns whether a majority-minority district can be created. The second and third preconditions are collectively known as the "racially polarized voting" or "racial bloc voting" requirement, and they 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.72:344–345

Subsequent litigation further defined the contours of "vote dilution through submergence" claims. In Bartlett v. Strickland (2009),80 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.8182:A2 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 provided additional guidance on the "totality of the circumstances" test in Johnson v. De Grandy (1994).78 The Court emphasized that the existence of the three Gingles preconditions may be insufficient to prove liability for vote dilution by submergence where other factors weigh against such a determination, especially in lawsuits challenging redistricting plans. In particular, the 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 Court held that Section 2 does not require jurisdictions to maximize the number of majority-minority districts.88 The opinion distinguished 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.78:1013–1014

An issue regarding the third Gingles precondition remains unresolved. In Gingles, the Supreme Court split as to whether plaintiffs must prove that the majority racial group votes as a bloc specifically because its members are motivated to vote based on racial considerations, as opposed to being motivated to vote by other considerations that may overlap with race, such as party affiliation. A plurality of the justices said that requiring such proof would violate Congress's intent to make Section 2 a "results" test, but Justice White maintained that such proof was necessary to show that the electoral scheme resulted in racial discrimination.89:555–557 Since Gingles, lower federal courts have split on the issue.c

Although most Section 2 litigation has involved claims of vote dilution through submergence,75:708–709 courts also have addressed other types of vote dilution under this provision. In Holder v. Hall (1994),93 the Supreme Court held that claims that minority votes are diluted by the small size of a governing body, such as a one-person county commission, are not cognizable under Section 2. A plurality of the Court reasoned that no uniform, non-dilutive "benchmark" size for a governing body exists, making relief under the Section 2 results test impossible.94 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 with 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.d

In addition to claims of vote dilution, courts have considered vote denial claims brought under Section 2. Lower federal courts have generally held that felony disenfranchisement laws cannot violate Section 2 because, among other reasons, such laws have been given explicit approval by Section 2 of the Fourteenth Amendment.19:756–75797 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.19:75498 In 2013, courts began to consider various challenges to voter ID laws brought under Section 2.99

Specific prohibitions

The Act contains several specific prohibitions on conduct that may interfere with a person's ability to cast an effective ballot. One of these provisions is Section 201, which prohibits any jurisdiction from requiring an individual to comply with any "test or device" to register to vote or cast a ballot. The term "test or device" encompasses literacy tests, educational or knowledge requirements, proof of good moral character, and requirements that a person be vouched for.100 Before the Act's enactment, these devices were the primary tools used by jurisdictions to prevent racial minorities from registering or voting.101 Originally, the Act suspended tests or devices temporarily in jurisdictions covered by the Section 4(b) coverage formula, but Congress subsequently expanded the prohibition to the entire country and made it permanent. Separately, Section 202 prohibits jurisdictions from imposing any "durational residency requirement" that requires persons to have lived in the jurisdiction for more than 30 days before being eligible to vote in a presidential election.102:353

Several further protections for voters are contained in Section 11. Section 11(a) prohibit any person acting under color of law from refusing or failing to allow a qualified person from voting or tabulating a qualified voter's ballot. Similarly, section 11(b) prohibits any person from intimidating, harassing, or coercing another person for voting or attempting to vote.48 Two provisions in Section 11 address voter fraud: Section 11(c) prohibits people from knowingly submitting a false voter registration application to vote in a federal election, and Section 11(e) prohibits voting twice in a federal election.103104:360

Finally, under Section 208, a jurisdiction may not prevent anyone who is illiterate or has a disability from being accompanied into the ballot box by an assistant of the person's choice. The only exceptions are that the assistant may not be an agent of the person's employer or union.56:221

Bail in

Section 3(c) contains a "bail-in" or "pocket trigger" process by which jurisdictions that fall outside the coverage formula of Section 4(b) may become subject to preclearance. Under this provision, if a jurisdiction has racially discriminated against voters in violation of the Fourteenth or Fifteenth Amendments, a court may order it to have future changes to its election laws preapproved by the federal government.33:2006–2007 Because courts have interpreted the Fourteenth and Fifteenth Amendments to prohibit only intentional discrimination, a court may bail in a jurisdiction only if the plaintiff proves that the jurisdiction enacted or operated a voting practice to purposely discriminate.33:2009

Section 3(c) contains its own preclearance language, and it differs from Section 5 preclearance in several ways. Unlike Section 5 preclearance, which applies to a covered jurisdiction until such time the jurisdiction may bail out of coverage under Section 4(a), bailed-in jurisdictions remain subject to preclearance for as long as the court orders. Moreover, the court may require the jurisdiction to preclear only particular types of voting changes. For example, the bail-in of New Mexico in 1984 applied for 10 years and required preclearance of only redistricting plans. This differs from Section 5 preclearance, which requires a covered jurisdiction to preclear all of its voting changes.33:2009–2010105

During the Act's early history, Section 3(c) was little used; no jurisdictions were bailed in until 1975. Between 1975 and 2013, 18 jurisdictions were bailed in, including 16 local governments and the states of Arkansas and New Mexico.106:1a-2a Although the Supreme Court held the coverage formula under Section 4(b) unconstitutional in Shelby County v. Holder (2013), it did not hold Section 3(c) unconstitutional. Therefore, bailed-in jurisdictions may remain subject to Section 3(c) preclearance, and additional jurisdictions may be bailed in.13107 In the months following Shelby County, courts began to consider requests by the Attorney General and other plaintiffs to bail in the states of Texas and North Carolina,108 and in January 2014 a federal court bailed in Evergreen, Alabama.109

A more narrow bail-in process pertaining to federal observer certification is prescribed in Section 3(a). Under this provision, a federal court may certify a non-covered jurisdiction to receive federal observers if the court determines that the jurisdiction violated the voting rights guaranteed by the Fourteenth or Fifteenth Amendments. Jurisdictions certified to receive federal observers under Section 3(a) are not subject to preclearance.110:236–237

Special provisions

Coverage formula

Map depicting states and counties encompassed by the Act's coverage formula in January 2008 (excluding bailed-out jurisdictions)
States and counties encompassed by the Act's coverage formula in January 2008 (excluding bailed-out jurisdictions). Several counties subsequently bailed out,42 but the majority of the map accurately depicts covered jurisdictions before the Supreme Court's decision in Shelby County v. Holder (2013), which declared the coverage formula unconstitutional.

Section 4(b) contains a "coverage formula" that determines which states and local governments may be subjected to the Act's other special provisions (except for the Section 203(c) bilingual election requirements, which contains a different formula). Congress intended for the coverage formula to encompass the most pervasively discriminatory jurisdictions. A jurisdiction is covered by the formula if:

  1. As of November 1, 1964, 1968, or 1972, the jurisdiction used a "test or device" to restrict the opportunity to register and vote; and
  2. Less than half of the jurisdiction's eligible citizens were registered to vote on November 1, 1964, 1968, or 1972; or less than half of eligible citizens voted in the presidential election of November 1964, 1968, or 1972.

As originally enacted, the coverage formula contained only November 1964 triggering dates; subsequent revisions to the law supplemented it with the additional triggering dates of November 1968 and November 1972, which brought more jurisdictions into coverage.42 For purposes of the coverage formula, the term "test or device" includes the same four devices prohibited nationally by Section 201 and one further device defined in Section 4(f)(3): in jurisdictions where more than 5% of the citizen voting age population are members of a single language minority group, any practice or requirement by which registration or election materials are provided only in English. The types of jurisdictions that the coverage formula applies to include states and "political subdivisions" of states.56:207–208 Section 14(c)(2) defines "political subdivision" to mean any county, parish, or "other subdivision of a State which conducts registration for voting."111

Throughout its history, the coverage formula remained controversial because it singled out certain jurisdictions, most of which were in the Deep South. In Shelby County v. Holder (2013), the Supreme Court declared the coverage formula unconstitutional because the criteria used was outdated and thus violated principles of equal state sovereignty and federalism.13112 The other special provisions that are dependent on the coverage formula, such as the Section 5 preclearance requirement, remain valid law. However, without a valid coverage formula, these provisions are unenforceable.14113

Preclearance requirement

Section 5114 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),115 holding that any change in a jurisdiction's voting practices, even if minor, must be submitted for preclearance.116 The Court also held that if a jurisdiction fails to have its voting change precleared, private plaintiffs may sue the jurisdiction in the plaintiff's local district court before a three-judge panel.e In these Section 5 "enforcement actions", a 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 must 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.1269:128–129115:556118:23

Jurisdictions may seek preclearance in two ways: by submitting the proposed change to the U.S. 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 D.C. 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.119:90–92 The Attorney General's decision is not subject to judicial review,120 but if the Attorney General interposes an objection, the jurisdiction may independently seek judicial preclearance, and the court may disregard the Attorney General's objection at its discretion.19:559 If a jurisdiction seeks judicial preclearance, it must file a declaratory judgment action against the Attorney General in the U.S. District Court for D.C. A three-judge panel of the court considers whether the voting change has a discriminatory purpose or effect. The losing party may appeal directly to the Supreme Court.121 Courts may allow private parties to intervene in judicial preclearance lawsuits.119:9062:476–477

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),122 the Court held that for a voting change to have a prohibited discriminatory effect, it must result in "retrogression" (backsliding). Under this standard, a voting 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.123:283–284 For example, replacing a poll tax with an equally expensive voter registration fee would not constitute a "retrogressive" change even though it may cause equal discrimination.43:695 Relying on the Senate report for the 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'".122:140–141 The retrogression standard applies irrespective of whether the voting change allegedly causes vote denial or vote dilution.123:311

In 2003, the Supreme Court held in Georgia v. Ashcroft62 that courts should not determine whether a redistricting plan has a retrogressive effect based solely on whether the redistricting plan decreases the ability of a minority group to elect its preferred candidates. The Court emphasized that courts should analyze various other factors under the "totality of the circumstances", such as whether the redistricting plan increases the number of "influence districts" in which a minority group is large enough to influence (but not decide) election outcomes. In 2006, Congress rejected this decision by amending Section 5 to explicitly state that "diminishing the ability [of a protected minority] to elect their preferred candidates of choice denies or abridges the right to vote within the meaning of" Section 5.124 Uncertainty remains as to what this language precisely means and how courts may interpret it.19:551–552, 916

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),61 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.123:277–278 This change significantly reduced the number of instances in which preclearance was denied based on discriminatory purpose. In 2006, Congress overturned Bossier Parish II by amending the Act to explicitly define "purpose" to mean "any discriminatory purpose."58:199–200, 207125

Federal examiners and observers

Until the 2006 amendments to the Act,48:50 Section 6 allowed the appointment of "federal examiners" to oversee certain jurisdictions' voter registration functions. Federal examiners could be assigned to a covered jurisdiction if the Attorney General certified that

  1. The Department of Justice received 20 or more meritorious complaints that the covered jurisdiction denied its residents the right to vote based on race or language minority status; or
  2. The assignment of federal examiners was otherwise necessary to enforce the voting rights guaranteed by the Fourteenth or Fifteenth Amendments.110:235–236

Federal examiners had the authority to register voters, examine voter registration applications, and maintain voter rolls.110:237 The goal of the federal examiner provision was to prevent jurisdictions from denying protected minorities the right to vote by engaging in discriminatory behavior in the voter registration process, such as refusing to register qualified applicants, purging qualified voters from the voter rolls, and limiting the hours during which persons could register. Federal examiners were used extensively in the years following the Act's enactment, but their importance waned over time; 1983 was the last year that a federal examiner registered a person to vote. In 2006, Congress repealed the provision.110:238–239

Under the Act's original framework, in any jurisdiction certified for federal examiners, the Attorney General could additionally require the appointment of "federal observers". By 2006, the federal examiner provision was used solely as a means to appoint federal observers.110:239 When Congress repealed the federal examiner provision in 2006, Congress amended Section 8 to allow for the appointment of federal observers to jurisdictions that satisfied the same certification criteria formerly used to appoint federal examiners.48:50 Federal observers are tasked with observing poll worker and voter conduct at polling places during an election and observing election officials tabulate the ballots.110:248 The goal of the federal observer provision is to facilitate minority voter participation by deterring and documenting instances of discriminatory conduct in the election process, such as election officials denying qualified minority persons the right to cast a ballot, intimidation or harassment of voters on Election Day, or improper vote counting.110:231–235 Discriminatory conduct that federal observers document may serve as evidence in an enforcement lawsuit subsequently brought against the jurisdiction.110:233 Since 1965, the Attorney General has certified 153 local governments across 11 states.126 Given time and resource constraints, federal observers are not assigned to every certified jurisdiction for every election.110:230 Separate provisions allow for a certified jurisdiction to "bail out" of its certification.126

Bail out

Under Section 4(a), a covered jurisdiction may seek an exemption from coverage via a process called "bailout."42 To achieve this, a covered jurisdiction must request and obtain a declaratory judgment from a 3-judge panel of the District Court for D.C. that the jurisdiction is eligible to bail out.1242 As originally enacted, a covered jurisdiction was eligible to bail out if it had not used a test or device with a discriminatory purpose or effect during the 5 years preceding its bailout request.30:22, 33–34 Therefore, a jurisdiction that requested to bail out in 1967 it would have needed to prove that it had not misused a test or device since at least 1962. Until 1970, this effectively required a covered jurisdiction to prove that it had not misused a test or device since before the Act was enacted five years earlier in 1965,30:6 making it impossible for many covered jurisdictions to bail out.30:27 However, Section 4(a) also prohibited covered jurisdictions from using tests or devices in any manner, discriminatory or otherwise; hence, under the original Act, a covered jurisdiction would become eligible for bailout in 1970 by simply complying with this requirement. But in the course of amending the Act in 1970 and 1975 to extend the special provisions, Congress also extended the period of time that a covered jurisdiction must not have misused a test or device to 10 years and then to 17 years, respectively.30:7, 9 These extensions continued the effect of requiring jurisdictions to prove that they had not misused a test or device since before the Act's enactment in 1965.

In 1982, Congress amended Section 4(a) to make bailout easier to achieve in two ways. First, Congress provided that if a state is covered, local governments in that state may separately bail out.42 Second, Congress liberalized the eligibility criteria by replacing the 17-year requirement with a new standard, allowing a covered jurisdiction to bail out by proving that in the 10 years preceding its bailout request that:

  1. The jurisdiction did not use a test or device with a discriminatory purpose or effect;
  2. No court determined that the jurisdiction denied or abridged the right to vote based on racial or language minority status;
  3. The jurisdiction complied with the preclearance requirement;
  4. The federal government did not assign federal examiners to the jurisdiction;
  5. The jurisdiction abolished discriminatory election practices; and
  6. The jurisdiction took affirmative steps to eliminate voter intimidation and expand voting opportunities for protected minorities.

In addition, the jurisdiction must produce evidence of minority registration and voting rates, including how these rates have changed over time and in comparison to the registration and voting rates of the majority. If the court determines that the covered jurisdiction is eligible for bailout, it will enter a declaratory judgment in the jurisdiction's favor. The court will retain jurisdiction for the following 10 years and may order the jurisdiction back into coverage if the jurisdiction subsequently engages in voting discrimination.304248:22–2349

The 1982 amendment to the bailout eligibility standard went into effect on August 5, 1984.42 Between that date and 2013, 196 jurisdictions bailed out of coverage through 38 bailout actions; in each instance, the Attorney General consented to the bailout request.106:54 Between that date and 2009, all jurisdictions that bailed out were located in Virginia.42 In 2009, a municipal utility jurisdiction in Texas bailed out after the Supreme Court's opinion in Northwest Austin Municipal Utility District No. 1 v. Holder (2009),127 which held that local governments that do not register voters have the ability to bail out.128 After this ruling, jurisdictions succeeded in at least 20 bailout actions before the Supreme Court held in Shelby County v. Holder (2013) that the coverage formula was unconstitutional.106:54

Separate provisions allow a covered jurisdiction that has been certified to receive federal observers to bail out of its certification alone. Under Section 13, the Attorney General may terminate the certification of a jurisdiction if 1) more than 50% of the jurisdiction's minority voting age population is registered to vote, and 2) reasonable cause to believe that persons may experience voting discrimination no longer exists. Alternatively, the District Court for D.C. may order the certification terminated.110:237, 239126

Bilingual election requirements

The Act contains two provisions that require certain jurisdictions to provide bilingual election materials to voters: Section 4(f)(4) and Section 203(c). A jurisdiction covered by either provision must provide all materials related to an election—such as voter registration materials, ballots, notices, and instructions—in the language of any applicable language minority group residing in the jurisdiction.56:209 Language minority groups protected by these provisions include Asian Americans, Hispanics, Native Americans, and Native Alaskans.129 Congress enacted the provisions to break down language barriers and combat pervasive language discrimination against the protected groups.56:200, 209

Section 4(f)(4) applies to any jurisdiction encompassed by the Section 4(b) coverage formula where more than 5% of the citizen voting age population are members of a single language minority group. Section 203(c) contains a formula that is separate from the Section 4(b) coverage formula, and therefore jurisdictions covered by 203(c) are not subject to the Act's other special provisions, such as preclearance. The Section 203(c) formula encompasses jurisdictions where the following elements exist:

  1. A single language minority is present that has an English illiteracy rate higher than the national average; and
  2. Either:
    1. The number of "limited-English proficient" members of the language minority group is at least 10,000 voting-age citizens, or the number of limited-English proficient members comprises at least 5% of the jurisdiction's voting-age citizen population; or
    2. The jurisdiction is a political subdivision that contains an Indian reservation, and more than 5% of the jurisdiction's American Indian or Alaska Native voting-age citizens are members of a single language minority and are limited-English proficient.56:223–224

Section 203(b) defines "limited-English proficient" as being "unable to speak or understand English adequately enough to participate in the electoral process".56:223 Determinations as to which jurisdictions satisfy the Section 203(c) criteria occur once a decade following completion of the decennial census; at this time, new jurisdictions may come into coverage while others may have their coverage terminated. Additionally, under Section 203(d), a jurisdiction may "bail out" of Section 203(c) coverage by proving in federal court that no language minority group within the jurisdiction has an English illiteracy rate that is higher than the national illiteracy rate.56:226 After the 2010 census, 150 jurisdictions across 25 states were covered under Section 203(c), including statewide coverage of California, Texas, and Florida.130

Impact

After its enactment in 1965, the law immediately decreased racial discrimination in voting. The suspension of literacy tests and assignments of federal examiners and observers allowed for high numbers of racial minorities to register to vote.75:702 Nearly 250,000 African Americans registered to vote in 1965, and one-third of whom were registered by federal examiners.131 In covered jurisdictions, less than a third (29.3%) of the African American population was registered in 1965; by 1967, this number increased to more than half (52.1%),75:702 and a majority of African American residents were registered to vote in 9 of the 13 Southern states.131 Similar increases were seen in the number of African American elected officials: between 1965 and 1985, African Americans elected as state legislators in the 11 former Confederate states increased from 3 to 176.132:112 Nationwide, the number of African American elected officials increased from 1,469 in 1970 to 4,912 in 1980.101:919 By 2011, the number was approximately 10,500.133 Similarly, registration rates for language minority groups increased after Congress enacted the bilingual election requirements in 1975 and enhanced them in 1992. In 1973, the percent of Hispanics registered to vote was 34.9%; by 2006, that amount nearly doubled. The number of Asian Americans registered to vote in 1996 increased 58% by 2006.56:233–235

After the Act's initial success in combating tactics designed to deny minorities access to the polls, the Act became predominately used as a tool to challenge instances of racial vote dilution.75:691 Starting in the 1970s, the Attorney General commonly interposed Section 5 preclearance objections to dilutive annexations, redistricting plans, and election methods such as at-large election systems, runoff election requirements, and prohibitions on bullet voting.119:105–106 In total, 81% (2,541) of precleareance objections made between 1965 and 2006 were based on vote dilution.119:102 Claims brought under Section 2 have also predominately concerned vote dilution.75:708–709 Between the 1982 creation of the Section 2 results test and 2006, at least 331 Section 2 lawsuits have resulted in published judicial opinions. In the 1980s, 60% of Section 2 lawsuits challenged at-large election systems; in the 1990s, 37.2% challenged at-large election systems, and 38.5% challenged redistricting plans. Plaintiffs succeeded in 37.2% of the 331 lawsuits, and they were more likely to succeed in lawsuits brought against Section 4(b) covered jurisdictions.134:654–656

By enfranchising racial minorities, the Act facilitated a political realignment of the Democratic and Republican parties. Between 1890 and 1965, minority disfranchisement allowed conservative Southern Democrats to dominate Southern politics. After Democratic President Lyndon B. Johnson signed the Act into law, newly enfranchised racial minorities began to vote for liberal Democratic candidates throughout the South, and Southern white conservatives began to switch their party registration from Democrat to Republican en masse.135:290 These dual trends caused the two parties to ideologically polarize, with the Democratic Party becoming more liberal and the Republican Party becoming more conservative. They also created competition between the two parties,135:290 which Republicans capitalized on by implementing the Southern Strategy;136 eventually, the Democratic Party's historical control of Southern politics was broken.135:290 Over the subsequent decades, the creation of majority-minority districts to remedy racial vote dilution claims also contributed to these developments. By packing liberal-leaning racial minorities into small numbers of majority-minority districts, large numbers of surrounding districts became more solidly white, conservative, and Republican. While this increased the elected representation of minorities as intended, it also decreased white Democratic representation and increased the representation of Republicans overall.135:292 By the mid-1990s, these trends culminated in a political realignment: the Democratic Party and the Republican Party have become more ideologically polarized and defined as liberal and conservative parties, respectively; and both parties compete for electoral success in the South,135:294 with the Republican Party controlling most of Southern politics.16:203

Constitutionality

Voter qualification provisions

Early in the history of the Act's enforcement, the Supreme Court addressed the constitutionality of several of the Act's provisions relating to voter qualifications. In Katzenbach v. Morgan (1966), the Court upheld the constitutionality of Section 4(e). This section prohibits jurisdictions from administering literacy tests to citizens who had received at least a sixth-grade education in an American school in which the predominant language was Spanish, such as schools in Puerto Rico.137 Although the Supreme Court had earlier held in Lassiter v. Northampton County Board of Elections (1959) that literacy tests did not violate the Fourteenth Amendment,138 in Morgan the Court held that Congress could enforce Fourteenth Amendment rights—such as the right to vote—by prohibiting conduct it deemed to interfere with such rights, even if that conduct may not be independently unconstitutional.139:405–406140:652–656 After Congress created a nationwide ban on all literacy tests and similar devices in 1970 by enacting Section 201, the Court upheld the prohibition as constitutional in Oregon v. Mitchell (1970).46102

In Oregon, the Court also addressed several other voter qualification provisions. It upheld Section 202, which prevents jurisdictions from imposing on voters in presidential elections any "durational residency requirement" that is more than 30 days. Additionally, the Court upheld the provision lowering the minimum voting age to 18 in federal elections, but it held that Congress exceeded its power by lowering the voting age in state elections. The Court was deeply divided in this case, and a majority of justices did not agree on a rationale for the holding.46:118–121102:353

Section 2 results test

The constitutionality of Section 2, which contains a general prohibition on discriminatory voting laws, has not been definitively 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.19:758–759

In Mississippi Republican Executive Opinion v. Brooks (1984),141 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 is more likely to disregard its summary affirmances in later cases, but lower courts must respect Supreme Court summary affirmances as being as equally binding on them as Supreme Court judgments with written opinions. Thus, partially due to Brooks, lower courts have unanimously held that the Section 2 results test is constitutional.19:759–760

Coverage formula and preclearance

The Supreme Court has upheld the constitutionality of the Section 5 preclearance requirement in three cases. The first case was South Carolina v. Katzenbach (1966),142 which was decided about five months after the Act's enactment. The 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.142:334–335143:76 The Court also upheld the constitutionality of the 1965 coverage formula, saying 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.142:330143:76–77

The Supreme Court again upheld the constitutionality of the preclearance requirement in City of Rome v. United States (1980).144 The Court held that because Congress had explicit constitutional power to enforce the Reconstruction Amendments "by appropriate legislation", the Act did not violate principles of federalism. The Court also explicitly upheld the "discriminatory effect" prong of Section 5, stating that even though the Fifteenth Amendment directly prohibited only intentional discrimination, Congress could constitutionally prohibit unintentional discrimination to mitigate the risk that jurisdictions may engage in intentional discrimination. Finally, the Court upheld the 1975 extension of Section 5 because of the record of discrimination that continued to persist in the covered jurisdictions. The Court further suggested that the temporary nature of the special provisions was relevant in determining Section 5's constitutionality.143:77–78

The final case in which the Supreme Court upheld the constitutionality of Section 5 was Lopez v. Monterey County (1999).118 In Lopez, the 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.143:78

The 2006 extension of Section 5 was challenged before the Supreme Court in Northwest Austin Municipal Utility District No. 1 v. Holder (2009).127 The lawsuit was brought by a municipal water district in Texas that elected members to a water board. The District wished to move a voting location from a private home to a public school, but that change was subject to preclearance because Texas was a covered jurisdiction. The District did not register voters, and thus it did not appear to qualify as a "political subdivision" eligible to bail out of coverage. Although the Court indicated in dicta that Section 5 presented difficult constitutional questions, it did not declare Section 5 unconstitutional; instead, it interpreted the law to allow any covered local government, including one that does not register voters, to obtain an exemption from preclearance if it meets the bailout requirements.145146

On November 9, 2012, the Supreme Court granted certiorari in the case of Shelby County v. Holder 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".147148 On June 25, 2013, the Court struck down Section 4(b) as unconstitutional.13113 The Court reasoned that the coverage formula violates the constitutional principles of "equal sovereignty of the states" and federalism 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.13112 The Court did not strike down Section 5, but without Section 4(b), no jurisdiction may be subject to Section 5 preclearance unless Congress enacts a new coverage formula.14 A few hours after the decision, Texas and Mississippi announced plans to implement voter ID laws that were previously denied preclearance.149

Racial gerrymandering

While Section 2 and Section 5 prohibit jurisdictions from drawing electoral districts to dilute the votes of protected minorities, the Supreme Court has held that in some instances, the Equal Protection Clause of the Fourteenth Amendment prevents jurisdictions from drawing district lines to favor protected minorities. The Court first recognized the justiciability of "racial gerrymandering" claims in Shaw v. Reno (1993).150 In Miller v. Johnson (1995),151 the Court explained that a redistricting plan is constitutionally suspect if the jurisdiction used race as the "predominant factor" in determining how to draw district lines. For race to "predominate", the jurisdiction must prioritize racial considerations over traditional redistricting principles, which include "compactness, contiguity, [and] respect for political subdivisions or communities defined by actual shared interests."152:621151:916 If a court concludes that racial considerations predominated, then the redistricting plan is considered "racially gerrymandered" and must be subjected to strict scrutiny, meaning that the redistricting plan will be upheld as constitutional only if it is narrowly tailored to advance a compelling state interest. In Bush v. Vera (1996),153:983 a plurality of the Supreme Court assumed that complying with Section 2 or Section 5 constituted compelling interests, and lower courts have treated these two interests as the only interests that may justify racial gerrymandering.19:877

See also

Notes

  1. ^ 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.78:1006
  2. ^ The Courts of Appeals in the Fifth Circuit,83 Eleventh Circuit,84 and Ninth Circuit85 have either explicitly held that coalition suits are allowed under Section 2 or assumed that such suits are permissible, while those in the Sixth Circuit86 and Seventh Circuit87 have rejected such suits.19:703
  3. ^ Courts of Appeals in the Second Circuit90 and Fourth Circuit91 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. In contrast, the Fifth Circuit has held that such proof is required as a necessary component of the third precondition.19:711–71292
  4. ^ The Court of Appeals for the Second Circuit has held that challenges to majority-vote requirements under Section 2 are not cognizable,95 while the Eastern District of Arkansas held the opposite.19:752–75396
  5. ^ The Supreme Court subsequently held that plaintiffs may alternatively bring Section 5 enforcement actions in state courts.19:534117

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