It is essential that the John Lewis Voting Rights Advancement Act (JLVRAA) be passed and, in addition, that the Department of Justice (DoJ) provide adequate resources, personnel, money and freedom to the Human Rights Section. vote (VRS, the office that enforces preclearance) to apply the new provision free from political influence in order to protect the right to vote for all and in particular to overturn discriminatory laws currently passed as part of a national campaign led by the state GOP lawmakers to impede minority access to the ballot box.
The 2013 Shelby v. Holder the ruling rescinded the section 4 coverage formula that determined which states and jurisdictions were covered by the section 5 preclearance provision which required political jurisdictions with a history of voting rights abuse to pre-approve changes in electoral laws, practices and procedures with the District of Columbia Circuit Court or the Department of Justice. Preclearance has prevented jurisdictions from applying discriminatory laws and procedures. Although the reauthorization of the preclearance framework received overwhelming bipartisan support during the reauthorization in 2006, the Tories submitted amicus curiae briefs opposing the law in Shelby. Chief Justice John Roberts applied several of the amici arguments in the ruling that Article 4 (b) violated “equal sovereignty of states” by treating states differently based on “40-year-old facts that don’t have no connection nowadays “and that” “[r]Regardless of how we look at the record, no one can honestly say that it shows anything approaching the “pervasive”, “blatant”, “widespread” and “rampant” discrimination to which Congress has been. confronted in 1965 ” [when the Voting Rights Act was passed.” Justice Antonin Scalia was correct when he surmised that Republicans who voted for renewal, were worried about political backlash, they did not support voting rights. We need JLVRAA because it will replace the Section 4 formula and reinvigorate the Section 5 preclearance provision so that voters can escape the detriment to their voting rights by provisions passed in 2021.
Justice Roberts Shelby analysis was incorrect. Voter discrimination was an entrenched issue in 2013 and the Voting Rights Act (VRA) preclearance provision did much to ward against abuses. A look at the record on state voter discrimination reveals that pervasive, flagrant, widespread and rampant discrimination against the voting rights of minority population were on the rise pre Shelby, in the form of voter ID and similar laws and post Shelby, these laws have proliferated. Data shows that from 1998 to 2013, the Civil Rights Division of the Justice Department blocked 86 voting law change submissions from state and local government entities. And according to a 2013 Brennan Center report, 31 submissions were blocked after the VRA’s re-authorization in 2006, which suggests there was no significant decrease in the period immediately prior to Shelby. Additionally, a raw accounting of blocked changes does not reflect the effectiveness of pre-clearance since many proposed changes to laws, procedures and practices are withdrawn or re-written after preclearance review. From 1999 to 2005, there were 264 proposed discriminatory changes that were withdrawn or altered after preclearance review by Department of Justice.
From 2013-2020, there was a significant increase in the numbers and types of state level laws that undermine the ability of minority populations to meaningfully affect election outcomes. Texas passed its previously blocked voter ID law just hours after the Shelby ruling, and other previously covered states (North Carolina, Alabama, Arizona, Florida, Mississippi, and Virginia) passed laws and implemented practices that would have previously required and likely been blocked by preclearance.
And in the aftermath of the 2020 election, things have gotten infinitely worse. In 2021, more than 360 restrictive bills have been introduced into state legislatures. The bills include restrictions on absentee voting/voting by mail, tightening voter ID laws, making it easier to purge voters from the rolls, making it harder to register and placing limits on early voting and access to precincts. The Republican party is engaged in a national campaign to introduce these bills in state legislatures. The most aggressive action has occurred in three previously covered states, Georgia, Texas and Arizona. Each state’s history includes rampant voting rights abuses encompassing a broad range of actions to deny Black, Latino and Native American equal access to voting.
The Georgia state legislature bombarded both houses of the state legislature with over 30 bills and amendments eventually merged into a 92 page omnibus bill. SB 202 includes a mix of restrictions on voting access, ranging from ban on issuing absentee ballot applications except by request, the addition of strict identification requirements for absentee voting, the virtual elimination of absentee drop boxes, a ban on provisional balloting in unassigned precincts, and extremely troubling the establishment of state legislative control over the State Election Board, demotion of the Secretary of State, and new ability to suspend election officials and take over local precincts. Right now Texas is on the verge of passing an omnibus bill. The two legislative chambers passed different versions of the bill which have to be resolved but both bills ban unsolicited mailing out of absentee ballot applications. In Arizona, there are 23 restrictive bills under consideration. In May, the state legislature passed the first of these bills, to remove people who have not voted at least once within a two-year period from the state’s Permanent Early Voter List (PEVL), which automatically generates ballots to qualified voters. Of the 100-200K voters expected to be purged, most will be Latino.
If the Shelby decision had affirmed the lower court rulings, and Section 4(b), Section 5 pre-clearance would have acted as check on the Georgia, Texas and Arizona legislatures and we would not have this problem.
Instead, large numbers of citizens believe that the 2020 elections were marred by massive fraud, and Republican legislators are leveraging that fear as a rationale to pass laws that deny, dilute, suppress and abridge voting rights. Thankfully, by only ruling on the Section 4(b) coverage formula, and not on Section 5, Shelby left open the possibility Congress could reinvigorate preclearance by revising the preclearance formula. This is exactly what the John Lewis Voting Rights Advancement Act (JLVRAA) does. Under the JLVRRA, all states and jurisdictions in the country are “covered” for a period of 10 years if they have engaged in repeated violations in the past 25 years. The bill identifies a list of practices that merit consideration for coverage, including changes to election methods, jurisdictional boundaries, redistribution changes, documentation / qualifications to vote, and reduction / consolidation / relocation of polling places (the types of laws we see being passed right now).
Enforcement of the JLVRAA must be aggressive, robust, without political interference
But, without more, the JLVRAA, in this hostile political environment, will not be enough. The law will have to be accompanied by modifications to the application of preclearance by the DOJ. To manage submissions nationally, the VRS will need to have the staff and resources to deal with preclearance issues and not be limited to jurisdictions that have the political clout to be recognized by the DOJ.
Despite its positive impact, the fact is that preclearance has never been rigorously enforced, even under Democratic administrations. The preclearance review began in 1970, and the Nixon administration, which opposed the law, enforced it more aggressively than any president afterwards. Republican presidents after Nixon have all opposed the law and each increased the politicization of the VRS. Democratic presidents have not enforced the law much more rigorously than Republican presidents. Even under administrations that support voting rights without pressure to undo, the justice ministry only handles a very small portion of cases. Less than 5% of voting rights cases involving racial minorities actually have the Justice Department as a complainant. This means that most cases are brought by private parties and require people to find the financial and legal resources to pursue litigation, which can be considerable. Interference with the state government under Article 5 was systematically weak and never resulted in a complete transfer of control of election laws from the states to the federal government, as some critics have claimed.
As such, the application of preclearance has provided negligible relief to small minority groups unable to exert sufficient political pressure. This has been a persistent problem for Native Americans. From 1973 to 1980, Civil Rights Divisions included an Indian Rights Office (OIR), later abolished under Reagan, which provided a Section 5 application to Indian country, but many changes affecting indigenous people did not been reviewed. Between 1976 and 2006, South Dakota implemented more than 600 electoral regulations affecting Todd and Shannon counties, but only obtained prior approval for less than ten. These failures resulted in a substantial electoral dilution of the electoral weight of the natives.
Passing the JLVRAA is critical to democratic voting in the United States, as it may provide the missing piece of the VRA that currently prevents the federal government from controlling state election laws. Preclearance works and it is clear that without protection democratic elections will be extremely difficult in 2022 and 2024. At the same time, legislation will need to be rigorously enforced. To be successful, the VRS will not be able to confine itself to cases that generate political pressure, and it will not be able to ignore the small populations in parts of the county far from the urban centers of power.
The bill allows states that no longer have problematic electoral law records to exit coverage after ten years and includes a number of other provisions unrelated to sections 4 (b) and 5. The most important of these would amend section 2 to require states or political subdivisions to offer polling stations the same pay and hours of operation on Indian lands at the request of the tribes. It lists federal facilities on tribal lands that can be designated as polling stations. It also covers the requirements for establishing postal voting locations and an early voting site on tribal lands.
 A state and all of its political subdivisions would be covered if there had been at least 15 violations in the past 25 years or if there had been at least 10 violations, at least one of which was committed by the state.
 There is evidence showing that the smaller political jurisdictions, which were covered by section 5, found it much easier than the larger ones to get away with not submitting changes for preclearance (Rodriguez, 2003: 808).