Voting Rights Act

Introduction

The Voting Rights Act (VRA) of 1965, codified at 52 USC §§ 10301-10702, is the most important federal statute protecting the right to vote. The VRA prohibits racial discrimination in voting and established federal enforcement mechanisms to ensure that all citizens could exercise their constitutional right to vote. The statute has been amended multiple times and remains the subject of extensive litigation and legislative debate.

Section 2

Section 2 of the VRA prohibits any voting qualification, standard, practice, or procedure that results in the denial or abridgment of the right to vote on account of race, color, or membership in a language minority group. Section 2 applies nationwide and does not require proof of discriminatory intent; a showing of discriminatory results is sufficient.

To establish a Section 2 violation, the plaintiff must show that the challenged practice interacts with social and historical conditions to cause an inequality in the opportunities of minority voters to elect their preferred candidates. The Gingles factors —racially polarized voting, minority group size and geographic compactness, and the ability of minority voters to elect candidates of their choice —guide the Section 2 analysis.

Section 5 Preclearance

Section 5 of the VRA required certain states and localities with a history of racial discrimination in voting to obtain preclearance from the Department of Justice or the D.C. District Court before making any changes to voting laws or procedures. The preclearance requirement was an extraordinary federal intrusion on state sovereignty, justified by the persistent history of voting discrimination.

In Shelby County v. Holder (2013), the Supreme Court struck down the Section 4(b) coverage formula that determined which jurisdictions were subject to Section 5, effectively invalidating the preclearance requirement. The Court held that the formula was based on decades-old data and violated the principle of equal state sovereignty.

Post-Shelby County Developments

After Shelby County, several previously covered jurisdictions enacted voting laws that were challenged under Section 2. These included voter identification requirements, polling place closures, and restrictions on early voting and absentee voting. The post-Shelby period saw a significant increase in voting rights litigation.

The John Lewis Voting Rights Advancement Act, proposed but not enacted, would have created a new coverage formula for Section 5 preclearance and strengthened Section 2 protections. State legislatures have continued to enact voting laws that have been challenged under Section 2.

Conclusion

The Voting Rights Act is the cornerstone of federal voting rights protection. Section 2’s nationwide prohibition on discriminatory voting practices continues to be enforced through litigation, while the Shelby County decision rendered Section 5 preclearance inoperative. The ongoing debate over the need for new federal voting rights legislation reflects continuing concerns about access to the ballot.