Voting Rights Act of 1965
|Long title||An act to enforce the fifteenth amendment to the Constitution of the United States, and for other purposes.|
|Nickname(s)||Voting Rights Act|
|Enacted by the||89th United States Congress|
|Effective||August 6, 1965|
|Stat.||79 Stat. 437|
|Title(s) amended||42—The Public Health and Welfare|
|U.S.C. sections created||42 U.S.C. §§ 1973–1973bb-1|
|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. §§ 1973–1973bb-1)7:372 is a landmark piece of federal legislation in the United States that prohibits discrimination in voting.8 It was signed into into law by President Lyndon B. Johnson during the height of the 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 Department of Justice, the Act is widely considered to be the most effective piece of civil rights legislation ever enacted in the country.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 U.S. 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
- 1 Background
- 2 Legislative history
- 3 Provisions
- 4 Impact
- 5 Constitutionality
- 6 See also
- 7 Notes
- 8 References
- 9 Further reading
- 10 External links
As initially ratified, the U.S. Constitution granted each state complete discretion to determine voting qualifications for its residents.15:50 After the Civil War, the three Reconstruction Amendments (1865–70) were ratified, which limit this discretion. The Thirteenth Amendment prohibits slavery; the Fourteenth grants citizenship to everybody "born or naturalized in the United States" and guarantees them due process and equal protection; and the Fifteenth explicitly prevents states from disenfranchising citizens "on account of race, color, or previous condition of servitude." The Amendments also empower Congress to enforce their provisions through legislation.16 Congress thus passed the Enforcement Acts of 1870–71, which criminalized the obstruction of a citizen's voting rights and provided for federal supervision of the electoral process, including voter registration.17:310 However, in 1875 the Supreme Court struck down parts of this legislation as unconstitutional in Cruikshank and Reese.18:97 After Reconstruction ended in 1877, enforcement of these laws became erratic, and in 1894 Congress repealed most of their provisions.17:310
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.19 From 1888 to 1908, Southern states legalized disfranchisement by enacting Jim Crow laws; they amended their constitutions and passed legislation to impose literacy tests, poll taxes, property-ownership requirements, "good character" tests, requirements that applicants interpret a particular document, and grandfather clauses that allowed otherwise-disqualified citizens to vote if their grandfathers did (thus excluding many African Americans whose grandfathers had been ineligible).1719 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 to give racial minorities the opportunity to register to vote.18:100
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 a division within the Department of Justice to enforce civil rights through litigation, and created a commission 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 empowered the courts to remedy violations of federal voting rights, strict legal standards made it difficult for the Justice Department to successfully pursue litigation. For example, to win a discrimination lawsuit against a state that maintained a literacy test, the Department needed to prove that the denied voter-registration applications of minorities were comparable to the accepted applications of Whites. This involved comparing thousands of applications in each of the state's counties, a process that could take thousands of hours. The Department's efforts were further hampered by resistance from local election officials, who would claim to misplace the minorities' records, remove registered minorities from the rolls, and resign so that voter registration ceased. Moreover, the Department often needed to appeal the lawsuits many times before the judiciary provided relief, because many federal district court judges opposed the protection of minorities' suffrage. Thus, between 1957 and 1964, the African American voter-registration rate in the South improved only marginally, even though the Department pursued voting-rights litigation 71 times.18:514
Congress responded to rampant discrimination against racial minorities in public accommodations and government services by passing the Civil Rights Act of 1964. The Act included some provisions that expanded voting rights; it required registrars to equally administer literacy tests in writing to each voter and to accept applications that contained minor errors, and created a rebuttable presumption that persons with a sixth-grade education were sufficiently literate to vote.15:972021 However, despite lobbying from civil rights leaders, the Act did not extensively address voting discrimination.22:253 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".15:48–50 However, Johnson did not publicly push for the legislation at the time; his advisers warned him of political costs for vigorously pursuing such a bill so soon after Congress passed the 1964 Civil Rights Act, and Johnson was particularly concerned that championing voting rights would endanger his Great Society reforms by angering Southern Democrats in Congress.15:47–48, 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.22:254–255 Their efforts culminated in protests in Alabama, particularly Selma, where Sheriff Jim Clark's police violently resisted African American voter-registration efforts. 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."22:255
In January 1965, Martin Luther King, Jr., James Bevel,2324 and other civil rights leaders organized several demonstrations in Selma that led to violent clashes with police. These marches received attention in the national media and drew attention to the issue of voting rights. King and other demonstrators were arrested during a march on February 1 for violating an anti-parade ordinance; this inspired similar marches in the following days, causing hundreds to be arrested.22:259–261 While King was in prison, Malcolm X gave a militant speech in Selma on February 4 in which he said that many people did not support King's nonviolent approach;22:262 he later privately said that he wanted to frighten whites into supporting King.15:69 The next day, King was released and a letter he wrote addressing voting rights, "Letter from a Selma Jail", appeared in The New York Times.22:262 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 proposal to Congress.15:69 However, he did not reveal the proposal's content or when it would come before Congress.22:264
On February 18 in Marion, Alabama, as state troopers violently broke up a nighttime voting-rights march, officer James Bonard Fowler shot and killed young protester Jimmie Lee Jackson, who was protecting his mother.22:26525 Spurred by this event, and at the initiation of Bevel,22:267232426:81–86 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 police on horseback at the Edmund Pettus Bridge outside Selma. The police shot tear gas into the crowd and trampled protesters. Televised footage of the scene, later known as "Bloody Sunday", generated outrage across the country.18:515
In the wake of these events, President Johnson, addressing a joint session of Congress on March 15, called on legislators to enact expansive voting rights legislation. He famously concluded his speech with the words "we shall overcome", a theme of the Civil Rights Movement.22:27827 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.18:51622:279, 282
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.28 Although Democrats held two-thirds of the seats in both chambers of Congress after the 1964 Senate elections,15:49 Johnson worried that Southern Democrats would filibuster the legislation, and therefore he enlisted Dirksen to help gain Republican support. Dirksen did not originally intend to support voting rights legislation so soon after supporting the Civil Rights Act of 1964, but he said he became willing to accept "revolutionary" civil rights legislation after learning about the police violence against the marchers in Selma on Bloody Sunday.15:95–96 Given Dirksen's key role in helping Katzenbach draft the bill, it became known informally as the "Dirksenbach" bill.15:96 After Mansfield and Dirksen introduced the legislation, 64 Senators agreed to cosponsor it with them.15:150
The bill contained several special provisions that targeted certain state and local governments: a "coverage formula" that determined which jurisdictions 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 approval from the U.S. Attorney General or the U.S. District Court for D.C. that the changes were not discriminatory; and the suspension of "tests or devices", such as literacy tests, in covered jurisdictions. 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 special provision to expire after five years.17:319–32018:520, 52429:5–6
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.17:317 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.30:1352 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.29:6 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.3132:2006–2007
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.15:150 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, Johnson's 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.18:52122:285 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.18:521 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.15:152–153
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."15:154 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.15:154–156 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 challenge the enforcement of poll taxes.22:156–15729:2 An amendment offered by Senator Robert Kennedy (D-NY) 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.15:159
On March 25, the Senate voted for cloture 70-30, thus overcoming the threat of filibuster and limiting further debate on the bill.33 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.15:16134
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.15:162 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 6.15:163
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 demonstrated 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.15:162–164 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 supporters, and the legislation failed on the House floor by a 171-248 vote on July 9.35 Later that night, the House passed the Voting Rights Act by a 333-85 vote (Democrats 221-61, Republicans 112-24).15:163–16536
The chambers appointed a conference committee to resolve differences between the House and Senate versions of the bill. The major contention concerned the poll tax provisions; the Senate version included a 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 legislative language that asserted that poll taxes were unconstitutional and instructed the Department of Justice to sue the states that maintained poll taxes. 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.15:166–167 The House approved this conference report version of the bill on August 3 by a 328-74 vote (Democrats 217-54, Republicans 111-20),37 and the Senate passed it on August 4 by a 79-18 vote (Democrats 49-17, Republicans 30-1).15:1673839 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.15:168
Congress enacted major amendments to the Voting Rights Act of 1965 in 1970, 1975, 1982, 1992, and 2006. Each of the amendments coincided with an impending expiration of some of the Act's special provisions, which originally were set to expire by 1970. In recognition of the voting discrimination that continued despite the Act, Congress repeatedly amended the Act to reauthorize the special provisions.15:209–21029:6–8 In each of these amendments except for the 1992 amendments, Congress extended the special provisions that were tied to the coverage formula, such as the preclearance requirement. These provisions were extended for five years in 1970, seven years in 1975, and 25 years in both 1982 and 2006. In 1970 and 1975, Congress also expanded the coverage formula, supplementing it with new 1968 and 1972 trigger dates. Coverage was further enlarged in 1975 when Congress expanded the meaning of "tests or devices" to encompass any jurisdiction that provided English-only election information, such as ballots, if the jurisdiction had a single language minority group that constituted more than five percent of the jurisdiction's voting-age citizens. These expansions brought numerous jurisdictions into coverage, including many located outside of the South.40 To ease the burdens of the reauthorized special provisions, Congress liberalized the bailout procedure in 1982, allowing covered jurisdictions to escape coverage by upholding the voting rights of protected minorities and affirmatively acting to expand minority political participation.18:523
In addition to reauthorizing the special provisions and expanding coverage, Congress amended and added several other provisions to the Act. For instance, Congress expanded the original ban on "tests or devices" to apply nationwide in 1970, and in 1975, Congress made the ban permanent.29:6–9 Separately, in 1975 Congress expanded the Act's scope to protect language minorities from voting discrimination. Congress defined "language minority" to include "persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage."41 Congress amended various provisions, such as the Section 5 preclearance requirement and Section 2 general prohibition of discriminatory voting laws, to prohibit discrimination against language minorities.42:199 Congress also enacted a bilingual election requirement in Section 203, which requires election officials in certain jurisdictions with large numbers of English-illiterate language minorities to provide ballots and voting information in the language of the language minority group. Originally set to expire after 10 years, Congress reauthorized Section 203 in 1982 for seven years, expanded and reauthorized it in 1992 for 15 years, and reauthorized it in 2006 for 25 years.43:19–21, 25, 49 The bilingual election requirements have remained controversial, with proponents arguing that bilingual assistance is necessary to enable recently naturalized citizens to vote and opponents arguing that the bilingual election requirements constitute costly unfunded mandates.43:26
Several of the amendments responded to judicial rulings that Congress disagreed with. In 1982, amended the Section 2 general prohibition of discriminatory voting laws to overturn the Supreme Court case Mobile v. Bolden (1980), which held that Section 2 prohibited only purposeful discrimination. Congress expanded Section 2 to explicitly ban any voting practice that had a discriminatory effect, irrespective of whether the practice was enacted or operated for a discriminatory purpose. The creation of this "results test" shifted the majority of vote dilution lawsuits brought under the Voting Rights Act from claims of Section 5 violations to claims of Section 2 violations.18:644–645 In 2006, Congress amended the Act to overturn two Supreme Court cases: Reno v. Bossier Parish School Board (2000),44 which interpreted Section 5 to prohibit voting changes that were enacted or maintained for a "retrogressive" discriminatory purpose instead of any discriminatory purpose, and Georgia v. Ashcroft (2003),45 which established a broader test for determining whether a redistricting plan had an impermissible effect under Section 5 than assessing only whether a minority group could elect its preferred candidates.46:207–208 In 2014, the Voting Rights Amendments Act was introduced in Congress to create a new coverage formula and amend various other provisions in response to the Supreme Court case Shelby County v. Holder (2013), which struck down the current coverage formula as unconstitutional.47
The Act contains two types of provisions: "general provisions", which apply nationwide, and "special provisions", which apply to only certain states and local governments.48:1 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."41 The Act's provisions have been colored by numerous judicial interpretations and Congressional amendments.
Section 2 generally prohibits voting discrimination based on race, color, or language minority status.43:37 The Supreme Court has allowed private plaintiffs to sue to enforce this prohibition.49:138 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.50:60–61 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.5152:3 The 1982 amendments provided that the results test does not guarantee protected minorities a right to proportional representation.53
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:
- The history of official discrimination in the jurisdiction that affects the right to vote;
- The degree to which voting in the jurisdiction is racially polarized;
- 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;
- Whether minority candidates are denied access to the jurisdiction's candidate slating processes, if any;
- The extent to which minority group members in the jurisdiction are discriminated against in socioeconomic areas, such as education, employment, and health;
- Whether overt or subtle racial appeals in campaigns exist;
- The extent to which minority candidates have won elections;
- The degree that elected officials are unresponsive to the concerns of the minority group; and
- 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.53:34454:28–2955
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.56:691–692 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.56:708–709 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,57:221 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.58
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:
- The racial or language minority group "is sufficiently numerous and compact to form a majority in a single-member district";
- The minority group is "politically cohesive" (i.e., its members tend to vote alike); and
- The "majority votes sufficiently as a bloc to enable it ... usually to defeat the minority's preferred candidate."60:50–51
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.53:344–345
Subsequent litigation further defined the contours of "vote dilution through submergence" claims. In Bartlett v. Strickland (2009),61 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.6263: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).59 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.69 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.59:1013–1014
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.70:555–557 Since Gingles, lower federal courts have split on the issue.c
Although most Section 2 litigation has involved claims of vote dilution through submergence,56:708–709 courts also have addressed other types of vote dilution under this provision. In Holder v. Hall (1994),74 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.75 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. The Supreme Court, in Richardson v. Ramirez (1974),78 held that felony disenfranchisement laws cannot violate Section 2 because, among other reasons, Section 2 of the Fourteenth Amendment allows for such laws.18:756–757 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.18:75479 In 2013, courts began to consider various challenges to voter ID laws brought under Section 2.80
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.81 Before the Act's enactment, these devices were the primary tools used by jurisdictions to prevent racial minorities from registering or voting.82 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.29:6–9 Relatedly, 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.83:353
Several further protections for voters are contained in Section 11. Section 11(a) prohibits 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.43 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.8485:360
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.42:221
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.32:2006–2007 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.32:2009
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.32:2009–201086
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.87:1a-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.1388 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,89 and in January 2014 a federal court bailed in Evergreen, Alabama.90
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.91:236–237
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:
- As of November 1, 1964, 1968, or 1972, the jurisdiction used a "test or device" to restrict the opportunity to register and vote; and
- 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.40 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.42:207–208 Section 14(c)(2) defines "political subdivision" to mean any county, parish, or "other subdivision of a State which conducts registration for voting."92
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.1393 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.1494
Section 595 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),96 holding that any change in a jurisdiction's voting practices, even if minor, must be submitted for preclearance.97 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.1249:128–12996:55699:23
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.100:90–92 The Attorney General's decision is not subject to judicial review,101 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.18:559 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.102 Courts may allow private parties to intervene in judicial preclearance lawsuits.45:476–477100:90
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),103 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.104:283–284 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.105:695 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'".103:140–141 The retrogression standard applies irrespective of whether the voting change allegedly causes vote denial or vote dilution.104:311
In 2003, the Supreme Court held in Georgia v. Ashcroft45 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 5.106 Uncertainty remains as to what this language precisely means and how courts may interpret it.18:551–552, 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),44 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.104:277–278 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."46:199–200, 207107
Until the 2006 amendments to the Act,43:50 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
- 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
- The assignment of federal examiners was otherwise necessary to enforce the voting rights guaranteed by the Fourteenth or Fifteenth Amendments.91:235–236
Federal examiners had the authority to register voters, examine voter registration applications, and maintain voter rolls.91:237 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.91:238–239
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.91:239 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.43:50 Federal observers are tasked with observing poll worker and voter conduct at polling places during an election and observing election officials tabulate the ballots.91:248 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.91:231–235 Discriminatory conduct that federal observers document may serve as evidence in an enforcement lawsuit subsequently brought against the jurisdiction.91:233 Since 1965, the Attorney General has certified 153 local governments across 11 states.108 Given time and resource constraints, federal observers are not assigned to every certified jurisdiction for every election.91:230 Separate provisions allow for a certified jurisdiction to "bail out" of its certification.108
Under Section 4(a), a covered jurisdiction may seek an exemption from coverage via a process called "bailout."40 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.1240 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.29:22, 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 1965,29:6 making it impossible for many covered jurisdictions to bail out.29:27 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.29:7, 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.40 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:
- The jurisdiction did not use a test or device with a discriminatory purpose or effect;
- No court determined that the jurisdiction denied or abridged the right to vote based on racial or language minority status;
- The jurisdiction complied with the preclearance requirement;
- The federal government did not assign federal examiners to the jurisdiction;
- The jurisdiction abolished discriminatory election practices; and
- 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.294043:22–23109
The 1982 amendment to the bailout eligibility standard went into effect on August 5, 1984.40 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.87:54 Between that date and 2009, all jurisdictions that bailed out were located in Virginia.40 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),110 which held that local governments that do not register voters have the ability to bail out.111 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.87:54
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.91:237, 239108
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.42:209 Language minority groups protected by these provisions include Asian Americans, Hispanics, Native Americans, and Native Alaskans.112 Congress enacted the provisions to break down language barriers and combat pervasive language discrimination against the protected groups.42:200, 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:
- A single language minority is present that has an English illiteracy rate higher than the national average; and
- 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
- 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.42:223–224
Section 203(b) defines "limited-English proficient" as being "unable to speak or understand English adequately enough to participate in the electoral process".42:223 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.42:226 After the 2010 census, 150 jurisdictions across 25 states were covered under Section 203(c), including statewide coverage of California, Texas, and Florida.113
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.56:702 Nearly 250,000 African Americans registered to vote in 1965, one-third of whom were registered by federal examiners.114 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%),56:702 and a majority of African American residents were registered to vote in 9 of the 13 Southern states.114 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 176.115:112 Nationwide, the number of African American elected officials increased from 1,469 in 1970 to 4,912 in 1980.82:919 By 2011, the number was approximately 10,500.116 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 2006.42:233–235
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.56:691 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.100:105–106 In total, 81% (2,541) of precleareance objections made between 1965 and 2006 were based on vote dilution.100:102 Claims brought under Section 2 have also predominately concerned vote dilution.56:708–709 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.117:654–656
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.118:290 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,118:290 which Republicans capitalized on by implementing the Southern Strategy;119 eventually, the Democratic Party's historical control of Southern politics was broken.118:290 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.118:292 By the mid-1990s, these trends culminated in a political realignment: the Democratic Party and the Republican Party became more ideologically polarized and defined as liberal and conservative parties, respectively; and both parties came to compete for electoral success in the South,118:294 with the Republican Party controlling most of Southern politics.15:203
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.120 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,121 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.122:405–406123:652–656 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).83124
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.83:353124:118–121
The constitutionality of Section 2, which contains a general prohibition on discriminatory voting laws, has not been definitively determined 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.18:758–759
In Mississippi Republican Executive Opinion v. Brooks (1984),125 the Supreme Court summarily affirmed, without a written opinion, a lower court's decision that Section 2 is constitutional. 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. Partially due to Brooks, the constitutionality of the Section 2 results test has since been unanimously upheld by lower courts.18:759–760
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),126 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.126:334–335127:76 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.126:330127:76–77
The Supreme Court again upheld the constitutionality of the preclearance requirement in City of Rome v. United States (1980).128 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.127:77–78
The final case in which the Supreme Court upheld the constitutionality of Section 5 was Lopez v. Monterey County (1999).99 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.127:78
The 2006 extension of Section 5 was challenged before the Supreme Court in Northwest Austin Municipal Utility District No. 1 v. Holder (2009).110 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.129130
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".131132 On June 25, 2013, the Court struck down Section 4(b) as unconstitutional.1394 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.1393 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.133
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 affirmative "racial gerrymandering" claims in Shaw v. Reno (1993).134 In Miller v. Johnson (1995),135 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."135:916136:621 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),137:983 a plurality of the Supreme Court assumed that complying with Section 2 or Section 5 constituted compelling interests, and lower courts have allowed only these two interests to justify racial gerrymandering.18:877
- National Voter Registration Act of 1993 (NVRA)
- Help America Vote Act (HAVA)
- Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA)
- Voter suppression in the United States
- Women's suffrage in the United States
- 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.59:1006
- The Courts of Appeals in the Fifth Circuit,64 Eleventh Circuit,65 and Ninth Circuit66 have either explicitly held that coalition suits are allowed under Section 2 or assumed that such suits are permissible, while those in the Sixth Circuit67 and Seventh Circuit68 have rejected such suits.18:703
- Courts of Appeals in the Second Circuit71 and Fourth Circuit72 have held that such proof is not an absolute 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.18:711–71273
- The Court of Appeals for the Second Circuit has held that challenges to majority-vote requirements under Section 2 are not cognizable,76 while the Eastern District of Arkansas held the opposite.18:752–75377
- The Supreme Court subsequently held that plaintiffs may alternatively bring Section 5 enforcement actions in state courts.18:53498
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