With Election 2020 Underway, a Key Provision of the Voting Rights Act Languishes
U.S. Rep. Terri Sewell (D-Ala.) in 2019 speaks in favor of a House bill introduced to replace provisions of the Voting Rights Act. Key sections of the 1965 law were struck by the Supreme Court in a landmark 2013 decision known as Shelby v. Holder. (Photo by Michael Brochstein/SOPA Images/LightRocket via Getty Images)
Against the fraught backdrop of a pandemic and a divisive presidential election, with historic early voter turnout, proposed legislation to restore the landmark Voting Rights Act remains locked in Congress.
The Voting Rights Act was first signed into law on Aug. 6, 1965, reinforcing voting rights already granted by the U.S. Constitution. Section 2 of the act, in particular, echoes the 15th amendment, by prohibiting states and their political subdivisions from denying anyone the right to vote based on race.
But in a 2013 decision known as Shelby v. Holder, the U.S. Supreme Court struck down a key provision of the law, deeming it unconstitutional. In response, Democrats in the House and the Senate introduced companion bills in February 2019, aiming to reinstate the invalidated portions of the law. The new legislation received fresh attention following the death of U.S. Rep. John Lewis (D-Georgia) in July.
“As long as I have breath in me, I will continue to champion the legacy of my district by advocating for the full restoration of the Voting Rights Act,” said Rep. Terri Sewell (D-Alabama), who sponsored the 2019 House bill — her third time introducing replacement legislation since 2015.
And yet, after the House bill passed 228 to 187 last December, with Lewis presiding over the vote, it has sat in the Senate, under review by the Judiciary Committee.
The matching Senate bill has seen even less activity.
The original Voting Rights Act was spurred by Bloody Sunday, when, in March 1965, Alabama state troopers attacked hundreds of voting-rights marchers, led by a young Lewis, as they crossed the Edmund Pettus Bridge in Selma, Alabama.
Key parts of the act, Sections 4 and 5, required that jurisdictions with a history of racial discrimination seek federal approval before changing their voting laws. The preclearance requirement was meant to prevent those jurisdictions from disenfranchising citizens based on race. Section 4 set out the criteria to determine which jurisdictions needed pre-clearance, while Section 5 instituted federal oversight.
Black voter registration increased significantly in the years that followed the law’s passage.
Subsequent challenges to the Voting Rights Act were largely rebuffed in court — notably in 1966, when the U.S. Supreme Court upheld the law in South Carolina v. Katzenbach. The act has been re-authorized multiple times since, most recently in 2006.
But in 2010, Shelby County — south of Birmingham, in central Alabama — filed a lawsuit arguing that the preclearance section of the Voting Rights Act was unconstitutional. The complaint said that if preclearance was based on recent election data, Shelby County would no longer fit the criteria, and yet it still had to spend a significant amount of time and money seeking permission to change voting practices. Congress was overreaching its authority by enforcing preclearance and had violated the constitution, Shelby County claimed.
The case advanced to the U.S. Supreme Court, which sided with Shelby County in 2013 and ruled that Section 4 was unconstitutional. Chief Justice John Roberts delivered the court’s opinion, writing that, while preclearance had been “strong medicine” needed to cure stubborn racial discrimination in voting, things had changed. Despite dramatic increases in voter turnout and registration in the covered states, the law had not relaxed its restrictions, Roberts wrote.
By striking Section 4, the Supreme Court rendered Section 5 useless.
The late Justice Ruth Bader Ginsburg famously dissented that “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
At the time, Alabama was one of nine mostly Southern states under preclearance, alongside Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia, as well as several counties and townships in other states.
The 2013 decision had immediate effect. Texas, for instance, announced it would move forward with a law limiting the types of ID accepted at the polls. The Brennan Center for Justice, a nonpartisan law and policy institute, has tracked the case in Texas, along with other voting laws and lawsuits nationwide ahead of the 2020 election.
“Voter suppression is not something from history books or museums,” Michael Waldman, president of the Brennan Center for Justice, told FRONTLINE. “It’s a very real threat right now to many people’s ability to vote. It’s … certainly quite unfortunate that we don’t have the full strength of the Voting Rights Act at this moment.”
Of her 2019 bill, “It sits on the Senate desk languishing,” Sewell told FRONTLINE. “It’s really disheartening and actually quite disturbing that voting rights has become so partisan.”
“If I’m passionate about it, it’s because … I grew up in Selma, Alabama,” Sewell said. “I represent my home district, my hometown of Selma, where people like John Lewis were bludgeoned on the bridge for the equal right of every American citizen to vote.”
For more on the 2020 election, watch Whose Vote Counts, a documentary from FRONTLINE, Columbia Journalism Investigations, Columbia Journalism School and USA TODAY NETWORK reporters. Whose Vote Counts premiered Tues., Oct. 20, 2020, on PBS stations and is now available to stream in FRONTLINE’s online collection of streaming films, on YouTube, in the PBS Video App.