In a democracy, there is one right that stands atop all the rest: the right to vote. Unless the right of citizens of all races, ethnicities, and classes to cast a ballot is carefully protected, a democracy has limited legitimacy — or none.
Our country’s history embodies this lesson, telling a story of expanding voting rights culminating with the 1965 Voting Rights Act. The Voting Rights Act did not make up for decades of Jim Crow laws, but it sought to ensure we never returned to those dark days of our history by enshrining the right to vote for Americans of all races. And for 38 years, the VRA accomplished that. Voting rights were protected, and our democratic legitimacy benefited.
That changed in 2013, when the US Supreme Court struck down a critical component of the VRA in Shelby County v. Holder. The court held that it was no longer reasonable to require states that had discriminatory practices in the 1960s or early 1970s to obtain permission from Washington before changing their voting laws. “Problems remain in these States and others,” wrote Chief Justice Roberts, “but there is no denying that … our Nation has made great strides” toward racial equity.
Shelby County’s lifting of restrictions on those states, however, has resulted in an unprecedented wave of voter suppression laws. Several states moved quickly to narrow the kinds of identification voters could supply at the polls and to eliminate same-day registration, among other measures. These laws are so clearly tailored to suppress minority voters that former Attorney General Eric Holder described them as having “echoes of Jim Crow.”
The enactment of these laws has coincided with bogus complaints from some quarters about election fraud (especially fraud by minority-group members), which President Donald Trump has loudly endorsed, and which have now led to his creation of a presidential advisory commission tasked with ensuring “election integrity.”
But those claims, rejected almost universally by state election officials (and disproven by the facts), mask the truth: Voting rights are under greater threat today than they have been since before the signing of the 1965 VRA. As citizens in a democracy, we should be horrified by voter suppression laws, and appalled by the Trump Administration’s attempt to distract from the problem by allowing a biased commission to give new life to right-wing myths that threaten a central tenet of our democracy.
Our democratic legitimacy will be determined by how we respond, as a country, to the growing assault on voting rights. The successful suppression of a single vote is an assault on the citizenry as a whole; it’s an attempt to shift power away from the people and to a specific elite class. We cannot stand back and rely only on our courts to challenge every new voter suppression law. This could be our generation’s civil rights moment, our 1965, and we must rise to meet it. We need a 21st century Voting Rights Act. The onus is on us to demand one, and on Congress to pass it.
The Voting Rights Act of 1965 put states that had discriminated against black voters under special scrutiny. In 2013, the court lifted that scrutiny.
Under the 1965 VRA, certain states with a history of racial discrimination — states that had imposed literacy or “character” tests, for example, and where minority registration was unusually low — were required to seek “preclearance,” or advance permission, for any changes to voting regulations. They sought this permission from either the US District Court for the District of Columbia or the US Attorney General (through the Department of Justice).
Thousands of laws were prevented from being enacted or were required to be amended by DOJ during the VRA’s 38-year existence — laws that otherwise would have violated the equal right to vote by discriminating against minorities. Perhaps even more important, the existence of the VRA itself served as a check against lawmakers’ discriminatory inclinations.
In 2013, the Supreme Court ruled in Shelby County that section 4 of the VRA, which laid out the formulas for determining which states and counties were required to seek preclearance, had outlived its relevance and amounted to an unconstitutional restriction on state autonomy. In some cases, Justice John Roberts noted, states with very low levels of black voter registration in 1965 had caught up with other states.
Roberts wrote that “voting discrimination still exists; no one doubts that. The question is whether the Act’s extraordinary measures, including its disparate treatment of the states, continue to satisfy constitutional requirements. As we put it a short time ago, ‘the Act imposes current burdens and must be justified by current needs.’” The result of the decision was that no state or county any longer had to seek preclearance from the Justice Department before enacting voting laws (unless required to do so by a court, under a different section of the VRA).
Chief Justice Roberts was correct that we have made racial progress since 1965, but state actions that immediately followed Shelby County suggest that progress has been slower and more intermittent than many want to admit. Almost immediately after the ruling came down, states rushed to enact voter suppression laws, including Virginia, Michigan, Wisconsin, North Dakota, Texas, North Carolina, Kansas, and others. (The Brennan Center for Justice, at the New York University School of law, usefully summarizes the state actions here.)
Judges are striking down the new discriminatory laws, but the process is slow and costly
The good news is that these laws have slowly but surely been losing in court. The Fourth Circuit Court of Appeals struck down new provisions in North Carolina that ruled out most forms of ID besides drivers’ licenses, ended same-day registration, barred out-of-precinct voting, and curtailed early voting. The court observed that legislators had requested data on the likely effects of such moves on minority voters — and chosen the ones that would most punish minority voters. “[T]he new provisions target African Americans with almost surgical precision,” wrote Judge Diana Gribbon Motz, while supplying “cures for problems that did not exist.” (The Supreme Court this month declined to consider the state’s appeal of the decision.)
In Wisconsin, a judge described the state’s ID system as a “wretched failure” that overwhelmingly burdened African American and Hispanic voters. A US District Judge blocked a North Dakota voter ID law because it imposed “substantial and disproportionate burdens” on Native American voters.
While these cases represent victories for voting rights, they have come at immense cost. It is time consuming and expensive to sue states, and the laws in question often remain in effect until a decision comes down. Moreover, a lower court ruling can block a law in one state while leaving similar laws intact elsewhere. Hundreds of thousands of voters were prevented from voting in 2014 because of laws that were subsequently struck down. How much this voter suppression changed the outcome of elections that year will never be known, but we know the direction of the intended effect: Republicans were helped, Democrats were hurt.
It’s important to note that when the Supreme Court ruled in Shelby County, it did not invalidate the preclearance concept entirely. Instead, the Court only struck down the formula, which implicated nine states and certain counties in five other states due to their history of discrimination (specifically, a voting test in the 1960s or ‘70s, and low voter registration among minority groups — although the 1965 Act also referred to practices dating back to the Civil War). With that ruling, the Court put the burden on Congress to come up with a more updated formula.
What the years since Shelby County have demonstrated, however, is that no state is immune to voter suppression and racial discrimination. Voter suppression laws have sprouted up in states that were not implicated under the VRA’s original formula, including Wisconsin, North Dakota, and Kansas. Republicans in these states are taking lessons from the South and applying them tactically. The result is that we cannot predict which states will discriminate against minority voters tomorrow based on which states discriminated against minorities in the past.
After Shelby County, members of Congress tried to enact a new formula by introducing the Voting Rights Amendment Act of 2014. Under that bill, which did not pass, the preclearance formula would have mandated scrutiny of new voting laws in any state that had five Voting Rights Act violations in 15 years; or any law in a locality that had three violations in 15 years; or (again at the local level) one violation and persistent low minority turnout.
But even that formula is not strong enough. If a state, emboldened by Shelby, embarks on a new voter suppression campaign, we shouldn’t have to wait 15 years to conclude that discrimination is happening. And we shouldn’t have a law that says two Voting Rights Act violations in 15 years is acceptable.
We need a new formula. And the only one that can ensure that no voter is suppressed in America is one that covers all 50 states. Any change to voting regulations in any state should have to be reviewed and precleared. There would be no targeting of specific states and counties, in the way Shelby County invalidated, nor any benchmark in history that can become outdated. The right to vote must be sacrosanct, and that means leaving no room for voter suppression anywhere.
To make a 50-state rule effective, Congress must provide the means to enforce it. It can do so by establishing an independent Office of Voting Rights. The Trump administration makes clear why independence is so essential. In just a few months, Attorney General Jeff Sessions and his DOJ have shifted to a much weaker stance towards voting rights than that taken by the Obama administration. Sessions’s DOJ, for example, reversed its position on Texas’s voter ID law, going so far as to seek dismissal of the department’s previous claim that the law was intentionally discriminatory.
We cannot afford for the protection of voting rights to wax and wane depending on who is in the White House. Moreover, prior to Shelby County, DOJ reviewed thousands of cases every year. We need an office with the resources and independence to handle a 50-state caseload, regardless of the party in power. The Office of Voting Rights would exist solely to review and approve or disapprove of any proposed changes to voting rights regulations, state by state.
There rightfully exists a high threshold for any law that subjects states to the oversight of Washington. Jim Crow met that threshold, the Supreme Court decided in the 1960s. The onslaught of voter suppression in the past four years should also be recognized as the emergency that it is — especially as the state-level efforts have been coupled with an executive branch intent on doubling down on such suppression. This extraordinary set of circumstances meets the criteria justifying oversight. Protecting voting rights — the vehicle through which the power of the people is exercised — must take precedence over the convenience and sovereignty of the states.
We live in the best democracy on earth. We should strive to live up to that standard when protecting the most important right in any democracy. Any infringement on the right to vote is a threat to the legitimacy of our democracy. Our country’s history is fraught with examples of discrimination, and we should do everything in our power to prevent them from recurring. The past few years have proven that a strategy that relies on challenging laws in court is not enough.
Trump’s commission on “election integrity” may be just the first step in a White House-led assault on our most fundamental democratic right. At this precarious moment, the United States needs a 21st century Voting Rights Act. Every candidate for national office should be required to make public her or her position on this vital piece of legislation.
Russ Feingold represented Wisconsin in the US Senate from 1993 to 2011 and recently formed LegitAction, an organization focused on restoring legitimacy to our democracy.
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