The following is adapted from oral testimony given on Monday before the House Judiciary Committee’s subcommittee on the Constitution, Civil Rights and Civil Liberties at a hearing on potential legislative reforms to the Law on Human Rights. 1965 voting rights.
In its 2013 decision in Shelby County v. Holder, the Supreme Court gutted the most powerful and effective provision of the Voting Rights Act of 1965. Under the law, jurisdictions with a history of discrimination could not change their voting procedures without first obtain a “preclearance” from the Department of Justice or a Federal District. Washington court to ensure that the proposed change would not harm minority voters. In Shelby County, the court ruled that the formula used by Congress to determine which states should be covered by preclearance was outdated.
But the court did not overturn preclearance entirely, instead calling on Congress to develop an updated formula – one “based on current conditions and ‘needs’,” and targeting jurisdictions where discrimination is sufficiently prevalent and persistent to justify preclearance. This is precisely what this Congress did – and is now refining – in the John Lewis Voting Rights Advancement Act (VRAA).
Racial discrimination in voting remains widespread and persistent. It is the “extraordinary conditions”, in the words of the court, that make preclearance both necessary and constitutionally justified.
Amid the abundant evidence to make this point, it should be noted that the turnout of non-white voters is significantly lower than that of white voters – and has been for at least 25 years. In the 2020 election, despite a record overall turnout, around 71% of white voters voted, compared to just 58% of non-white voters. The gap between them is even more marked in the states likely to be covered by the VRAA. And in virtually every one of those states, the gap has widened dramatically since the Shelby County decision.
Targeted geographic coverage remains a necessary and appropriate means to eliminate intractable discrimination in voting. Although discrimination is widespread, it is much more prevalent and persistent in some places than in others.
The modernized geographic coverage formula that Congress envisions for the VRAA identifies places where electoral discrimination is recent, widespread and persistent. As such, it is sensible, fair and constitutional, responding to the concerns of the Court in Shelby County.
The formula is based on documented violations of laws prohibiting racial discrimination in voting. It only captures states that reach a high numerical threshold of violations over time – 10 violations if at least 1 of them is statewide, or 15 violations in total, in the past 25 years. . And this ensures that preclearance will be limited to states where discrimination is common; jurisdictions without recent violations will no longer be subject to the requirement.
As Justice Elena Kagan recently observed in her dissent on a recent ruling that further reduced protections in the voting rights law, this is a “dangerous time for the government.” nation’s commitment to equal citizenship ”and an“ era of restricted voting rights ”.
The scale of electoral discrimination is enormous, and it will become more so as states and communities across the country begin the process of redistribution. This is a problem that only Congress can solve – by passing the John Lewis Voting Rights Advancement Act and the For the People Act.
The submitted written testimony is here.