In 1964, at the height of the Civil Rights Movement, President Lyndon B. Johnson recognized the shortcomings of the Civil Rights Act and instructed Attorney General Nicholas Katzenbach to draft “the goddamndest, toughest voting rights act that you can.” One year later, the Voting Rights Act of 1965, often lauded as the “crown jewel” of civil rights protection, was signed into law.
Since its inception 51 years ago, the Voting Rights Act has often enjoyed deference by the United States Department of Justice as the single most effective piece of civil rights legislation ever enacted in the country—and not without good reason. The comprehensive act was composed not only of general provisions for the regulation and administration of election procedures, but also specific conditions targeting jurisdictions with a history of minority disenfranchisement, mandating that those jurisdictions would have to submit any proposed changes to election or voting law for “preclearance” by the United States Department of Justice. In the 15 years leading up to the Shelby decision, the “preclearance” section, or Section 5, had blocked at least 86 discriminatory laws, and has caused over 260 changes to be “withdrawn or altered after the Department of Justice asked the jurisdictions for more information to assess whether they were discriminatory under the Voting Rights Act.”
Unfortunately, in 2013, Section 5 of the Voting Rights Act, one of the most powerful tools of the Department of Justice in effectively combating discriminatory election changes, was disabled. The Supreme Court found that Section 4(b), the section that contained the formula determining which states and local jurisdictions would be covered under the Section 5 preclearance requirements, was “outdated” and violated the equal protection clause of the constitution. That very day, Texas moved to implement discriminatory photo ID laws that disproportionately barred individuals of low-income or minority groups from voting, and within one year, at least 10 of the 15 states covered in part or in totality by Section 5 introduced discriminatory legislation. Seven other formerly covered states—although barred from implementing any changes pending preclearance approval—passed restrictive legislation in 2011 and 2012, before the Shelby ruling.
Since then, the Department of Justice has had no choice but to litigate using Section 2 of the Voting Rights Act—an extremely inefficient, costly, and time-consuming endeavor. In the four years before Shelby, 58,692 changes were screened from covered jurisdiction by the Department of Justice for preclearance approval. Now, lacking an effective infrastructure, the Department of Justice, along with other civil rights organizations, must proactively seek out and attempt to prove intent to discriminate on behalf of the covered jurisdictions—an imperfect solution.
The path, however, has not been without victories. Last week the Fourth Circuit Court of Appeals struck down the “Monster Voter Suppression” law in North Carolina and just a few weeks ago, in Texas NAACP v. Steen, the Fifth Circuit Court of Appeals found SB 14, Texas’ photo ID law and the strictest of its kind in the United States, to be unconstitutional—a move that is estimated to restore the right of up to 600,000 otherwise eligible individuals to vote. The case, however, took five years of the combined efforts of the Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee), Brennan Center for Justice, Law Offices of Jose Garza, the national office of the NAACP, Law Office of Robert S. Notzon, Potter Bledsoe L.L.P., Dechert LLP and the Covich Law Firm, LLC to win. While we have made some significant strides to re-enfranchise voters since the gutting of Section 5 of the voting rights act, the Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee) remains actively engaged in litigation across the country challenging discriminatory voting laws that make access to the ballot box more difficult.
In Georgia, grassroots organizations have successfully blocked voter intimidation efforts, and concerned citizens in Arizona have formed a coalition to remedy the lack of oversight resulting from the Shelby County decision.
Although much work remains to be done in the arena of voting rights, it is important to celebrate and acknowledge the place of this historic piece of civil rights legislation. Although some of its most crucial provisions may have been eviscerated, the Voting Rights Act of 1965 stands still for the belief in equality and unity under law—something that has not diminished in the least through time. On the 51st anniversary of the inauguration of this act, the Voting Rights Act serves as an ample reminder that the fight for civil rights is not over.