From Selma to Shelby County: Working Together to Restore the Protections of the Voting Rights Act

July 17, 2013

On behalf of the Brennan Center for Justice, I thank the Senate Judiciary Committee for the opportunity to submit testimony in connection with this important hearing, “From Selma to Shelby County: Working Together to Restore the Protections of the Voting Rights Act.” The Brennan Center is a nonpartisan law and policy institute that focuses on issues of democracy and justice; among other things, we work to ensure fair and accurate voting procedures and systems, and that every eligible American, and only eligible Americans, can participate in elections.[1]

Because of the centrality of voting to our system of democracy, and because of the persistence of racial discrimination in the voting process, we urge Congress to work quickly, and in a bipartisan manner, to restore the protections of the Voting Rights Act that were rendered inoperative by the Supreme Court’s recent decision in Shelby County v. Holder. The purpose of my testimony is to bring to this Committee’s attention recent research by the Brennan Center that underscores the urgency of congressional action now. Specifically, in If Section 5 Falls: New Voting Implications, attached to this testimony, Myrna Pérez and Vishal Agraharkar catalog, quantify, and describe some of the substantial number of discriminatory voting changes that officials in covered jurisdictions have previously sought to put in place and may now attempt to put in place in the wake of the Supreme Court’s decision in Shelby County.

I. The Supreme Court’s Decision in Shelby County

The Supreme Court in Shelby County effectively eviscerated the core provision of the Voting Rights Act, leaving millions of voters without the protection of the most effective tool in American law to combat racial discrimination in voting. The Voting Rights Act is widely acknowledged as the most effective piece of civil rights legislation, a cornerstone of American law guaranteeing political equality. As political leaders on both sides of the aisle recognized when Congress overwhelmingly reauthorized the law just seven years ago, Section 5 is a critical and necessary element of that Act.[2]

A robust Voting Rights Act — with a reinvigorated Section 5 at its core — continues to be necessary to secure the equal voting rights promised to all citizens by the Constitution. “[N]o one doubts,” as Chief Justice Roberts declared, that the problem of “voting discrimination still exists” in America,[3] especially in places with a history of such discrimination. Congress made substantial findings on this point in 2006, and we expect the evidence before this Committee to further demonstrate the unfortunate persistence of racial discrimination in voting. Although the country has made substantial progress since 1965, the work of the Voting Rights Act is unfinished. Until last month, Section 5 was a critical engine for this progress and a critical deterrent for discriminatory voting practices. Existing laws are simply insufficient to fill the void left by the Supreme Court’s decision.

In Shelby County, the Supreme Court expressly left the door open for Congress to restore or replace Section 5.[4] Although the real-world effect of the Court’s decision was sweeping, the legal ruling was actually relatively narrow. The Court invalidated Section 4 of the Voting Rights, the coverage formula that determined which states were subject to the requirements of Section 5, on the basis of its finding that the formula was outdated and had not been tailored to “current conditions.”[5] The Court thus rendered Section 5 inoperative in practice, but, for the second time since 2006, it expressly declined to strike down Section 5. The Court expressly acknowledged that the problem of race discrimination in voting has not been eradicated and that Congress may act to remedy that problem.[6] Indeed, the decision in no way undermined Congress’s express powers, under both the Fourteenth and Fifteen Amendments to the US Constitution, to combat racial discrimination in voting through appropriate legislation. Moreover, in another case this Term, the Court reaffirmed Congress’s “broad” and “paramount” powers to regulate how federal elections are conducted.[7] Congress thus has an extremely strong basis to pursue much-needed legislative efforts to protect all Americans against the threat of discrimination in voting.

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From Selma to Shelby County: Working Together to Restore the Protections of the Voting Rights Act

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