On Aug. 24, 2021, the US House of Representatives passed the John R. Lewis Voting Rights Advancement Act. Introduced to the House by Alabama’s 7th District’s Democrat Rep. Terri Sewell, the Act was an attempt to revitalize the gutted Voting Rights Act of 1965, allowing the federal government to vet for racism when states change their voting laws. All House Democrats voted for the Bill; all House Republicans but one voted against.
On Nov. 3, 2021, the bill failed to pass the Senate after falling short of the 60 votes it needed to invoke cloture and bypass the filibuster.
In order to understand the significance of this failure, one first needs to understand the history it sits atop. Brian Halberg, who teaches law and history at Franklin High School, spoke about the USA’s long history of voter suppression: “You had states that were able to, for decade upon decade in the Jim Crow era, use the power of the state to disenfranchise, marginalize, and discriminate against voters of color,” he says. “You have the use of all the mechanisms of state power through and up until the work and the advocacy of the civil rights era to forcibly deny people the right to vote.”
It’s important to note that these tactics were still prevalent in the years following the 15th Amendment’s protection of the right to vote regardless of race. Seemingly, when it comes to voter suppression, where there’s a will, there’s a way. Though the 15th Amendment is a roadblock to any law seeking to explicitly disenfranchise voters of color, many states found subtler ways to target Black voters—namely through things like grandfather clauses, literacy tests, and poll taxes, all of which were race-neutral on paper but served to keep the vote out of the hands of these historically marginalized communities. “How Southern states were able to do that,” Halberg continues, “is they had a law that they designed with a goal of attacking and disenfranchising African American voters in Southern states. And they target so that it would hit these groups, and they evaded and dodged around the wording, but their intent was always clear.” These laws were highly successful. By a Library of Congress estimate, before 1965—almost 95 years after the ratification of the 15th Amendment—only 23% of Black adults nationally were registered to vote.
The Voting Rights Act of 1965, which was only made possible through decades of Black activists’ work, sought to address this. It banned the use of literacy tests, allowed the US attorney general to investigate the use of poll taxes, and, perhaps most importantly, allowed for federal oversight of states with histories of racist voter discrimination. In practice, this made the 15th Amendment enforceable for the first time.
“[These states] had to, under that act, get pre-approval from, among other places, the Justice Department before they could change congressional boundaries or before they could change how voting rules are applied in these states,” Halberg explains. Through these preclearance requirements, the federal government now had the power to actually examine the voting practices of the states, creating a layer of scrutiny with the potential to repair some of the Jim Crow era’s discrepancies in voting access. By the aforementioned Library of Congress estimate, by 1969 the number of registered Black adults had leapt to 61%.
However, this changed with the Supreme Court case Shelby County v. Holder (2013). The case began with Shelby County, Alabama, filing a suit in district court stating that sections 5 and 4(b) of the 1965 Voting Rights Act were unconstitutional, which is where preclearance requirements reside. The district court ruled against Shelby County, but the county was eventually able to bring their case before the Supreme Court. Its eventual ruling was narrowly in favor of Shelby County: in a 5-4 decision, it concluded that these sections were, in fact, in violation of the Constitution. In its majority opinion the Court stated that the conditions of discrimination in these states were no longer sufficient to justify or necessitate the restrictions, thereby removing from the law preclearance requirements. It also singled out the formula used to distinguish which states fall under these requirements as outdated and in need of federal review. It’s difficult to say whether this described shift in voting conditions is a product of the Act’s success or obsolescence. That question is being tested as states alter their voting laws in the aftermath of Shelby County.
What is clear, though, is that this removal has rendered the Voting Rights Act of 1965 significantly defanged. Without the ability to examine and alter the voting laws of historically discriminatory states, the Act’s anti-discriminatory provisions become near-impossible to enforce. “If, you know, Georgia, for example, wants now to pass a law that eliminates or changes the number of places in which people in the county can go and vote or the hours in which they can vote, now they just need to pass the law under the rules of the Georgia State Constitution,” explains Halberg. “Before Shelby they would have had to prove in part to the Justice Department that the impact of that law would not have, either intentionally or by effect, a discriminatory impact.” Though all states are still bound by the 15th Amendment, there’s now little potential for accountability when it comes to these workaround discriminatory laws.
The general point of opposition for Republicans when it comes to national voting rights legislation, both in Shelby County and the John Lewis Voting Rights Advancement Act’s passage, is that such regulations are an undue attempt to federalize the right of states to regulate their own elections. This idea isn’t without credence: Article 1, Section 4 of the US Constitution does grant states the power to prescribe the “time, place, and manner,” of their elections. However, the same article does also state that the federal government has the power to create and alter these laws when concerning federal elections, which was previously held as sufficient to implement all provisions of the the Voting Rights Act of 1965. As in many Federalist systems, where exactly these powers lie between the state and federal governments is not entirely clear. There is the implication within the Constitution that the federal government has every right to impact national voting law, but the Supreme Court has held in its constitutional interpretation as of Shelby that this power is not all-reaching.
The significance of the John Lewis Voting Rights Advancement Act, then, was in part that it attempted to reinstate the preclearance requirements discarded by Shelby County. A major provision of the bill was the establishment of new criteria to determine which states require preclearance for voting laws, giving states the option to obtain preclearance through either the Department of Justice or the U.S. District Court. Specifically, it set numerical criteria for the number and manner of voting rights violations that may occur in a given state during the past 25 years before it becomes subject to federal pre-approval.
The near-unanimous Democratic support and Republican opposition of this bill is in line with an increasingly strong trend in recent years. Following in the footsteps of former President Donald Trump’s numerous allegations of widespread voter fraud in the 2021, a number of conservative states have begun to put in place increasingly restrictive voting laws, arguing that it will preserve election integrity. For example, as of 2021 people can be charged under Georgia law for giving out water or snacks to people standing in line at polls. A temporarily blocked 2021 Texas bill attempted to ban drive-thru and overnight early voting and made it a state felony for election officials to encourage mail-in voting. According to a roundup by the Brennan Center, a law and public policy oriented nonprofit associated with New York University, between the beginning of 2022 and January 14, 2022, “at least 27 states have introduced, pre-filed, or carried over 250 bills with restrictive provisions.” That’s in proportion to the 32 states who have done the same with over 399 bills aiming to expand voting access. Mail-in voting has been particularly targeted, with many bills attempting to significantly increase the requirements to do so, something that disproportionately affects low income or working class people who struggle to make it to increasingly sparse polling stations.
For the first time in its history, the United States has been classified as a “backsliding” democracy by the International Institute for Democracy and Electoral Assistance’s annual report on the Global State of Democracy. This degradation of US democratic systems is not without potential solutions, but the current state of partisan standstill on voting rights issues makes the viability of any such measures significantly more of an unknown. Coming up on the 2022 midterm elections, the choice is in the hands of the people to get involved in their representation or simply wait and see what comes of this strenuous time in American voting law.
