Bob Buckley: Voter laws likely to keep being tested
In June of 2013, the United States Supreme Court handed down a landmark decision on the Voting Rights Act of 1965. It was a 5-4 decision and Chief Justice John Roberts authored the majority opinion.
The Voting Rights Act of 1965 was enacted to address entrenched racial discrimination in voting, “an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.”
Section 2 of the Act, which applies nationwide, bans any “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen … to vote on account of race or color.” It is permanent and was not at issue in the Shelby County v. Holder decision that was decided in 2013.
Other sections of the law applied only to some parts of the country. Section 4 of the Act, which was before the court in Shelby County, provides the “coverage formula,” defining the “covered jurisdictions” as states or political subdivisions that maintained tests or devices as prerequisites to voting, and had low voter registration or turnout, in the 1960s and early 1970s.
Section 5 of the Act required states (covered jurisdictions) to “obtain federal permission before enacting any law related to voting – a drastic departure from basic principles of federalism.” Sections 4 and 5 were enacted to address the issues in southern states that made it more difficult for minorities to vote.
These two sections were initially set to expire after five years but the law had been extended multiple times in the last 50 years by reauthorization legislation in Congress. Justice Roberts noted in his majority opinion that Census Bureau data indicates that African American voter turnout has come to exceed white voter turnout in five of the six states originally covered by Section 5, with a gap in the sixth state of less than one half of one percent, which he claims make the preclearance requirement no longer necessary.
Prior to enactment of the Voting Rights Act in 1965 evil laws had been enacted to deter Black voters from voting, including laws that required voters to pass a literacy test in seven southern states. Those “covered jurisdictions” were those states or political subdivisions that had maintained a test or device to deter voting (literacy and knowledge tests, good moral character requirements, and the need for vouchers from registered voters) as a prerequisite to voting as of Nov. 1, 1964, and had less than 50 percent voter registration or turnout in the 1964 presidential election. The covered jurisdictions were Alabama, Georgia, Louisiana, Mississippi, South Carolina and Virginia; also included were 39 counties in North Carolina and one in Arizona.
Congress reauthorized the coverage legislation in 2006 for 25 years. That legislation was before the court in the 2013 case. The Voting Rights Act suspended “all changes to state election law in covered jurisdictions – however innocuous – until they have been precleared by federal authorities in Washington, D.C.” Shelby County, Alabama, contended that this preclearance requirement was no longer necessary and violated the Tenth Amendment and Article IV of the Constitution. The Tenth Amendment establishes the power of the individual states and our federal system. Article IV requires that the acts of the states are to be given “full faith and credit.”
The dissent in the Shelby County case said that it is Congress that should make the decisions as to whether legislation is necessary and noted that the reauthorizations were always approved with overwhelming votes. The dissent relied on the principle of the separation of powers and that the courts had no business determining whether legislation was still necessary.
In December of 2019, the U.S. House of Representatives approved legislation that updated and restored provisions of the Voting Rights Act. In his majority opinion, Justice Roberts invited Congress to do that, but the Senate under the leadership of Majority Leader Mitch McConnell has blocked any attempt to make this happen.
The advocates for new reforms and the legislation approved in December of last year point to the “squall’ of state legislation that has been enacted nationwide, including photo identification laws, restraints on voter registration, voter purges, cuts to early voting, restrictions on the casting and counting of absentee and provisional ballots, documentary proof of citizenship requirements, polling place closures and consolidations, and criminalization of acts associated with registration or voting. This legislation in many states has triggered a litigation explosion.
For example, the Missouri Supreme Court “gutted” legislation passed by the Republican-controlled legislature in 2016 that required a photo identification to vote. Many states have also resisted efforts to make voting more difficult. Congress could solve the problem by passing legislation, but that is unlikely in an election year in a country as divided as it was prior to the Civil War.
After the November elections, it will be interesting to see how Congress reacts to the Black Lives Matter movement when again faced with legislation that amends the Voting Rights Act of 1965. Success of such legislation will depend on the outcome of this election.
It will also be interesting to watch the voting this fall to see how this movement affects voter turnout. Patrick Mahomes and LeBron James, two of the most popular athletes in the country, are leading a national effort to register people, especially the young, to vote, so interest in the political process is on the rise. Legislation in many states making absentee voting easier (temporarily) will undoubtedly increase voter turnout. We can be certain that these issues will not vanish any time soon.
– Bob Buckley is an attorney in Independence, www.wagblaw.com. Email him at firstname.lastname@example.org