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Black History Month and The Voting Rights Act of 1965

Former US Rep. John R. Lewis
Former US Rep. John R. Lewis

February is Black History Month.  


It is a time to celebrate and honor all of the contributions, both past and present, from Black Americans.  


It is also a time to acknowledge all of the past and current horrendous injustices perpetrated on them throughout history. 


It is also a time to join forces with our neighbors, brothers and sisters to work towards ending those injustices and preventing more in the future.


Black History Month is also a good time to celebrate accomplishments but also recognize the threats to The Voting Rights Act of 1965


I am not, in any way, an expert on Black history or civil rights but I would like to say a few words about one of the most influential and consequential pieces of civil rights legislation and how it is under attack by conservatives and Republicans who do not want you to vote and, thus, rob us of a core piece of American democracy.


The Voting Rights Act (VRA) of 1965 - A Brief Introduction   


“The Voting Rights Act of 1965 (VRA), a federal law adopted during the height of the civil rights movement, thanks to the tireless efforts of Black activists, enforced the 15th Amendment’s guarantee that the right to vote can’t be denied “on account of race” and addressed barriers that prevented Black voters from casting their ballots. The law, which has been amended five times since its adoption, currently provides a wide range of protections to ensure that eligible voters are not denied the right to vote on account of race.“  


VRA Section 5


The VRA has a number of “Sections” aimed at preventing specific types of voting rights abuses.  Bit by bit, conservatives and Republicans have been trying to break the VRA by attacking various sections.


In 2013, five conservative Supreme Court Justices struck down Section 4’s coverage formula in the Supreme Court case Shelby County v. Holder, making Section 5 essentially unenforceable.


Section 5, which mandated that certain “covered” jurisdictions (states and localities) with a history of discriminatory election laws must get federal pre-approval before any newly proposed voting legislation could go into effect. In short, Section 5 allowed the federal government to block state-sponsored discrimination before it occurred, targeting those jurisdictions most likely to continually disenfranchise voters.


Section 5 allowed the federal government to monitor the actions of states that had a long history of chronic voting rights abuses (the original “covered” areas included Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia, In addition, certain political subdivisions (usually counties) in four other states - Arizona, Hawaii, Idaho, and North Carolina were covered).  Over the years, various states or localities were added or dropped from the list based on their performance and compliance with consent decrees.  


So what is the result of the castration of the VRA Section 5 ?  The warped thinking of the conservatives on the Supreme Court does not allow the Federal Government to prevent the chronically abusive states and localities from continuing their bad election behavior.  Since this decision in 2013, numerous bad actor states and localities have passed subversive and discriminatory election laws.  


VRA Section 2


Section 2 of the VRA prohibits any voting law, practice or map that results in the “denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” This provision provides a mechanism for challenging laws and maps that were enacted with a discriminatory purpose or have a discriminatory impact. 


On January 30, 2024 the entire 8th U.S. Circuit Court of Appeals denied a request from civil rights groups seeking reconsideration of a November 2023 decision that drastically weakened the Voting Rights Act across seven states. In that ruling, two Republican-appointed judges held that private parties cannot sue under Section 2 of the Voting Rights Act — a decades-old federal civil rights provision that prohibits racially discriminatory voting laws and maps.  This ruling affects the following states:  Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.  


What is a “private right to action” ?  The grand majority of the litigation brought against voting rights abuses have originated from individuals or private non-governmental groups such as the NAACP.  This new ruling means that the only entity that can bring a lawsuit against voting rights abusers under the VRA is the Federal Department of Justice.  Unfortunately, this would require a significant increase in resources into the Civil Rights Division and we all know what the MAGA crowd in Congress thinks of the DOJ so they will not allow (as long as they are in power) an increase in DOJ funding and likely would want to “defund” the FBI and the DOJ.


Thankfully, this is not the end of the VRA.  There is established precedent for a private right of action under Section 2 of the VRA as determined in the 5th, 6th and 11th U.S. Circuit Courts of Appeals.  Even the Supreme Court has been taking and ruling on cases originating from a private right of action for decades which implies an approval of this concept although the Court has never ruled on it specifically.  This ruling only applies in the 8th Circuit (those states mentioned above) and not the rest of the country.  Because of conflicting rulings by different US Circuit Courts of Appeal, this will be going to the Supreme sometime in the next 1-2 years (likely not 2024).


So what do we do now ?


We have an opportunity on November 5, 2024 to elect a federal government that will restore, clarify and guarantee increased voting rights for all Americans and prevent bad actors from taking away our rights.


If we elect candidates that support voting rights then we can pass the following voting rights legislation introduced by Democrats:


John R. Lewis Voting Rights Advancement Act of 2023 (this bill especially restores and strengthens Section 5) 

  • This bill establishes new criteria for determining which states and political subdivisions must obtain preclearance before changes to voting practices may take effect. Preclearance is the process of receiving preapproval from the Department of Justice (DOJ) or the U.S. District Court for the District of Columbia before making legal changes that would affect voting rights.

  • A state and all of its political subdivisions shall be subject to preclearance of voting practice changes for a 10-year period if, during the previous 25 years:

  • 15 or more voting rights violations occurred in the state;

  • 10 or more violations occurred, at least 1 of which was committed by the state itself; or

  • 3 or more violations occurred and the state administers the elections.

  • A political subdivision as a separate unit shall also be subject to preclearance for a 10-year period if three or more voting rights violations occurred there during the previous 25 years.

  • States and political subdivisions that meet certain thresholds regarding minority groups must preclear covered practices before implementation, such as redistricting.

  • States and political subdivisions must notify the public of changes to voting practices.

  • The bill authorizes DOJ to require states or political subdivisions to provide certain documents or answers to questions for enforcing voting rights.

  • The bill outlines factors courts must consider when hearing challenges to voting practices, such as the extent of any history of official voting discrimination in the state or political subdivision.



The For The People Act of 2021 (originally introduced in 2019) or the newer compromise House Bill Freedom to Vote Act or the Senate version:


  • This bill addresses voter access, election integrity and security, campaign finance, and ethics for the three branches of government.

  • Specifically, the bill expands voter registration (e.g., automatic and same-day registration) and voting access (e.g., vote-by-mail and early voting). It also limits removing voters from voter rolls.

  • The bill requires states to establish independent redistricting commissions to carry out congressional redistricting.

  • Additionally, the bill sets forth provisions related to election security, including sharing intelligence information with state election officials, supporting states in securing their election systems, developing a national strategy to protect U.S. democratic institutions, establishing in the legislative branch the National Commission to Protect United States Democratic Institutions, and other provisions to improve the cybersecurity of election systems.

  • Further, the bill addresses campaign finance, including by expanding the prohibition on campaign spending by foreign nationals, requiring additional disclosure of campaign-related fundraising and spending, requiring additional disclaimers regarding certain political advertising, and establishing an alternative campaign funding system for certain federal offices.

  • The bill addresses ethics in all three branches of government, including by requiring a code of conduct for Supreme Court Justices, prohibiting Members of the House from serving on the board of a for-profit entity, and establishing additional conflict-of-interest and ethics provisions for federal employees and the White House.

  • The bill requires the President, the Vice President, and certain candidates for those offices to disclose 10 years of tax returns.


Conclusion


The VRA is a piece of legislation that is absolutely vital to maintaining our democracy and preserving all of our rights.  In fact, most of our rights depend on the right to vote and being able to participate in free and fair elections.  Voting is a method of making sure that our elected officials "represent us" rather than "rule us".


Black History Month is not just a month that rolls around every year.  It is a testament to the fortitude and sacrifice of those Black Americans who suffered and fought for us and generations to come. 


Conservatives and Republicans are attacking those rights and even trying to rewrite Black history.  We cannot let them so we must fight now and into the future. 


If we do not protect our rights then they will be taken away.


Vote in every election you can. 


Vote Like Your Pants Are On Fire !
Vote Like Your Pants Are On Fire !


Additional Information









Democracy Docket is an excellent website and podcast from voting rights lawyer Marc Elias whose law firm has sponsored dozens of lawsuits across the country to preserve voting rights and democracy.  Sign up for his daily email newsletter here.

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