This week marks the 50th anniversary of the passage of the Voting Rights Act of 1965 (VRA). This landmark civil rights legislation signed by President Lyndon B. Johnson was designed to help all citizens realize their constitutional right to vote and to eliminate Jim Crow laws that disenfranchised minorities.
Just a few months prior to the signing, Martin Luther King, Jr. led a group of African-Americans and other voting rights advocates on a march from Selma to Montgomery, Alabama to demand an end to discriminatory practices -- such as the use of literacy tests almost exclusively given to minorities as a prerequisite to register -- that denied the right to vote to many citizens of color in the South. Racial tensions boiled over on the second day as Alabama state troopers clubbed and tear gassed the peaceful protestors. The following week President Johnson, who had been reluctant to push for voting rights legislation so soon after he helped shepherd the passage of the Civil Rights Act of 1964, called for a new voting rights law. To a national TV audience he stated, "There is no Negro problem. There is no Southern problem. There is no Northern problem. There is only an American problem." Congress finally agreed and embraced the idea of further guarantees to protect the right to vote. Five months after "Bloody Sunday," on August 6, 1965 in the presence of Dr. King and Rosa Parks, President Johnson signed the VRA into law.
The VRA affirmed the protections of the Fourteenth and Fifteenth Amendments by prohibiting state and local governments from discriminating against racial and language minorities in their voting procedures. It brought about watershed achievements in democracy by greatly expanding the electorate. By 1968, registration by African-Americans in the South rose to 62%. In 1965 there were only six African-American members of the House of Representatives and one in the Senate. After the VRA was passed, approximately 12,000 African-Americans have been elected to political office nationwide. The Justice Department called it one of the most effective pieces of civil rights legislation ever passed by Congress, which has amended the VRA four times to expand these voting protections.
Efforts to amend voting laws and procedures were blocked by Section 5 of the VRA. This required jurisdictions with histories of racially motivated voting law restrictions to receive pre-clearance from the federal government before implementing such laws to prevent further disenfranchisement of minorities. Section 5 applied to Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia as well as parts of California, New York, Florida, Michigan, North Carolina and South Dakota.
After 48 years, the VRA's ability to protect voters was drastically altered in 2013, when the Supreme Court considered a challenge to the trigger of the pre-clearance requirement in Shelby County v. Holder. The Court ruled the Section 4 formula, determining which jurisdictions were subject to preclearance, was no longer necessary due to higher minority voter turnout in many of the covered states. By invalidating Section 4, the Court shifted the burden of proof from jurisdictions enacting discriminatory laws to the individuals negatively impacted by those laws.
In her dissent, Justice Ruth Bader Ginsburg noted that the majority overlooked the crucial fact that, "barriers to minority voting would quickly resurface were the preclearance remedy eliminated." Almost immediately after the ruling, North Carolina proved Ginsburg's fear right. The state overhauled its election law in what many consider to be the worst assault on voting rights in recent years, and what North Carolina voting rights advocates have coined "Our Selma." A challenge to North Carolina's election changes is underway in federal court.
While voting rights have steadily progressed, recent setbacks demonstrate the need for continued work on this front. Concerns about our nation's shifting demographics and a wave of new state legislators have given rise to a resurgence of voter suppression tactics and legislation, many of which adversely affect minority voters. These include requiring a narrow list of photo IDs to vote that unnecessarily burden many low-income communities and are based on unfounded claims of voter fraud, shorter early voting periods, purges of eligible registrants off the voter rolls due to flawed data-match systems, and stringent proof of citizenship requirements.
Without the restoration of preclearance protections, we need to vigilantly scrutinize voting changes in states and localities. This, again, shifts the burden to monitor the thousands of jurisdictions that may change voting procedures in ways that adversely impacts minority communities.
Despite these setbacks, there are many ways to modernize elections and make them more accessible to voters. Examples include same-day registration, absentee ballots that do not require voters to include an excuse as to why they cannot travel in person to the polls, early voting periods, and expanded language access for limited-English proficiency populations through interpreters and translated voting materials. These measures not only expand access but also help combat voter suppression.
Online voter registration appeals to young voters, helps transient populations update their registration when they move, reduces costs related to printing and staffing, and protects registrants' personal information better through a secure portal. It began in Arizona in 2002 and is currently used in 21 states.
The U.S. is one of the few democracies in the world where the government does not play an active role in registering voters. Yet the idea of automatically registering all eligible voters is gaining traction. Automatic registration uses existing government databases to identify eligible voters and puts them on the voter rolls unless they opt out. Soon after Oregon became the first state to pass automatic registration in March 2015, legislators in 17 states plus the District of Columbia introduced similar bills.
Better enforcement of motor voter laws at state motor vehicles offices and social service agencies would also help expand voting opportunities for those traditionally underrepresented. The Justice Department has authority to do so under the National Voter Registration Act of 1993 (NVRA).
The Voting Rights Advancement Act of 2015 was introduced in June to put teeth back into the VRA and restore the preclearance requirement by modernizing the coverage formula. While Congress has yet to schedule a hearing date on for this legislation, it is important to continue using other avenues to protect voting rights.
These issues are so systemic that effective advocacy also entails educational outreach. Organizations working with underrepresented constituencies need to continue to educate voters on their rights and registration options year-round and in preparation for the 2016 elections.
On March 7, 2015, President Barack Obama commemorated the protestors who stood on the battle lines at Selma's Edmund Pettus Bridge. He stated, "They held no elected office. But they led a nation." Images of their strife have become emblazoned in our political consciousness. Voting rights have made large strides since then, but we have much more work to do.
FELN Elections Attorney Sabrina Khan contributed to this piece.