Public viewing of John Lewis, lying in state at the Capitol, 7/27/20. Photo courtesy Victoria Pickering (CC image).
Without protected voting rights for every eligible American, it is impossible to have a government that is truly representative of and accountable to the people. To this end, H.R.4, the John R. Lewis Voting Rights Advancement Act of 2021 (VRAA), was designed to protect the right to vote for Americans who experience voting discrimination on the basis of race, color, or language minority membership. It amends the Voting Rights Act (VRA) of 1965 by strengthening its power to protect voting rights and updating its requirements to be specific to the modern context of voting discrimination. The bill was passed in the House strictly along party lines. It now goes before the Senate, where, according to current Senate rules, legislation must pass the filibuster before it can even be debated.
To do
Contact your senators and ask them to bring the John Lewis Voting Rights Advancement Act (VRAA) to the floor for debate. This important act protects the right to vote for millions of Americans and should be discussed openly on the Senate floor. Senators who oppose this legislation should have the courage to explain why and not hide behind the filibuster. This means all Democrats and at least 10 Republicans must be willing to start a discussion of the act. In less than five minutes, you can answer some short prompts to have a personalized letter created for you and sent to both your senators. Go HERE to submit a letter.
Background
Below is a discussion of the history and context of the bill as well as the content of the bill.
Historical background to the bill
Suppression of the voting rights of Black Americans was prevalent throughout the 19th and 20th centuries. The advocacy and protests of many courageous men, women, and children contributed to the civil rights movement of the 1950s and 60s. Pressured by the public and shamed by the international community for segregation and discrimination at home, Lyndon B. Johnson’s administration was forced to act. In response, the administration oversaw the passage of the Civil Rights Act of 1964.
Then, on March 7, 1965, activists who wanted to register to vote, including the late John Lewis, were brutally attacked by state law enforcement in Selma, Alabama. The horror of Bloody Sunday shocked the nation and the world. It showed how little the Civil Rights Act had done to secure the basic right to vote for African Americans, revitalizing support in Congress for a voting rights act.
The Voting Rights Act (VRA) of 1965 ultimately passed with bipartisan support and has been widely acclaimed as a compelling symbol of American democratic success. It abolished literacy tests for voting and instituted federal oversight over voter practices in areas where racial discrimination in voting was common. Though the VRA of 1965 was challenged in the court system soon after it passed, the Supreme Court issued decisions between 1965 and 1969 that upheld its constitutionality.
The VRA has been amended five times since its inception, expanding and renewing its protection of voting rights. Each time, it has had bipartisan support; each time, its core has been upheld as constitutional. The VRA and other voting acts also enabled other disenfranchised groups, such as Indigenous, Hispanic, and Chinese Americans to vote and engage in our democratic processes.
One critical component of the VRA of 1965 was Section 5, which required federal approval (often referred to as preclearance) before a covered jurisdiction (e.g., a district, county, or state) could implement any changes to voting policies or practices, to ensure that these changes did not result in “denying or abridging the right of any citizen of the United States to vote on the basis of race or color.” Section 5 was initially designed to expire after five years, but Congress recognized its continuing relevance and renewed it several times with occasional modifications.
In 2013, the Supreme Court held, in a 5-4 opinion on Shelby County v. Holder, that it was unconstitutional to continue to use the preclearance coverage formula found in Section 4b of the VRA because it was outdated. While the Supreme Court decision did not find Section 5 itself to be unconstitutional, the effectual result of this ruling was that the jurisdictions that were covered by the VRA at the time of the Shelby County decision were no longer subject to its preclearance requirement. The majority opinion argued that preclearance was no longer necessary to prevent racial voter discrimination because “‘voter turnout and registration rates’ in covered jurisdictions ‘now approach[ed] parity. Blatantly discriminatory evasions of federal decree are rare. And minority candidates hold office at unprecedented levels’” (p. 3). In the dissenting opinion, Justice Ginsburg countered 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” (p. 33).
The impact of Shelby County v. Holder was seen almost immediately. Within 24 hours, Texas’s strict voter ID law went into effect, greatly restricting forms of acceptable IDs voters could use to cast a ballot, which more than 600,000 registered Texans did not have. Likewise, the day after the Shelby County decision, North Carolina announced plans for a new election law. Within two months, a restrictive NC voting law was enacted, instituting photo ID requirements, removing same-day registration, and limiting early voting and pre-registration. This law was subsequently challenged in court and struck down in 2016 by the U.S. Court of Appeals for the Fourth Circuit, which found that it violated Section 2 of the VRA because it discriminated against Black Americans “with almost surgical precision.” Despite the continued need for voting protections, because of this ruling the Justice Department has had to significantly limit their VRA enforcement and election monitoring activities.
While Section 5 was no longer enforceable in 2016, Section 2 of the Voting Rights Act was still powerful, which in 1965 stated: “No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.” In 1982, Section 2 was amended to state that the “totality of circumstances” must be considered to examine whether some individuals “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” This amendment lessened the difficult burden of proving discriminatory intent. Unlike Section 5, Section 2 was still in effect in 2016 and had no expiration date.
But on July 1, 2021, the Supreme Court issued a decision in Brnovich v. DNC that may disproportionately harm minority populations by limiting the ability to bring successful litigation under Section 2. Brnovich ruled in favor of an Arizona voting policy that requires the entirety of a ballot be thrown out if the vote was cast in the wrong precinct (even a vote for president, where the ballot options are identical in each precinct). However, as pointed out in the Brnovich dissent, Hispanics, African Americans, and Native Americans were more than twice as likely as whites to have their ballots discarded in 2016 for out-of-precinct voting (p. 32), and in Maricopa County (Arizona’s largest), minority voters were more likely than white voters to have their precinct relocated prior to an election (p. 34). Yet, the Court majority still found that a “mere inconvenience” or “usual burdens of voting” are not enough to constitute discrimination, even if the policy in question disproportionately harms minority voters. While driving further to a relocated precinct may be a “usual burden of voting” for many citizens, it can be an insurmountable obstacle for others, including those without access to private transportation, additional time off work, or flexible childcare.
The majority Brnovich opinion included five “guideposts” to consider when examining claims of discrimination. Unfortunately, these guideposts generally ignore the Section 2 injunction to consider the “totality of circumstances.” Morales-Doyle from the Brennan Center testified, “The majority’s guideposts are particularly harmful because they downplay the significance of the hallmarks of modern voter suppression. Thanks to the Voting Rights Act, these days we rarely see blatantly race-based disenfranchisement of broad swaths of the electorate…. The Brnovich majority makes it harder to challenge these more subtle practices” (p. 6). Especially concerning is that the Court’s decision validated the use of voter fraud claims as an acceptable justification for states to restrict voting, despite extensive evidence that concerns of widespread voter fraud are unfounded.
While Section 2 was not by any means found to be unconstitutional, the Brnovich ruling will likely make it even more difficult to enforce the spirit of the Voting Rights Act in court. Rick Hasen, law professor at the University of California, Irvine, also warned: “This significantly dilutes the Voting Rights Act. . . . Minority groups will now have to meet a much higher standard beyond showing that a change presents a burden to voting.” And, considering the significant number of states that have adopted or proposed restrictive voting legislation this year, it is especially concerning that both of the most powerful tools of the VRA (Sections 2 and 5) have been rendered ineffectual.
This combination of circumstances has led to the current moment of great need for federal protection of the right to vote for every eligible American. The John Lewis Voting Rights Advancement Act is intended to both restore the Voting Rights Act to its original position as a powerful tool to fight voter discrimination and expand its power to include any state that attempts to implement laws that discriminate against minority voters.
Contents of the bill
One of the most important aspects of the John Lewis Voting Rights Advancement Act (VRAA) is the updated preclearance formula to identify which jurisdictions (such as states, counties, districts, cities, or other voting jurisdictions) will be subject to federal oversight of changes to their voting practices. Since the Supreme Court determined in 2013 that it was unconstitutional to subject jurisdictions to federal oversight based on an outdated formula, the VRAA establishes a formula that will remain relevant in perpetuity as long as racial discrimination in voting persists. It specifically targets geographical areas where racial discrimination in voting is prevalent and recent. The formula is also based on very specific data. Rather than examining registration rates and voter turnout rates among minority voters, the VRAA’s coverage formula is based solely on the number of recent violations of voting rights laws, including the 14th and 15th Amendments, the Voting Rights Act, the John Lewis Voting Rights Advancement Act, and “any Federal Law which prohibits discrimination in voting.”
Jurisdictions will be covered by the preclearance formula if they reach a specific numeric threshold of violations over the preceding 25 years. States that meet the coverage threshold are subject to federal preclearance requirements for 10 years, after which older violations are no longer counted. States that do not have any violations over the past 10 years are released from the preclearance process.
Another important aspect of the John Lewis Voting Rights Advancement Act is that it amends the Voting Rights Act of 1965 to establish a list of current voting practices that are subject to federal preclearance requirements wherever they occur, to ensure that they do not have the effect of denying or abridging the right to vote on the basis of race, color, or membership in a language minority group. In addition, it would allow retroactive challenge to voting laws that were put into place on or after January 1, 2021. These covered voting practices can be seen here (pp. 33-39).
Additionally, the VRAA amends Section 2 of the Voting Rights Act to clarify what should and should not be considered when evaluating vote abridgment, dilution, or denial claims. For instance, it specifies that when a court reviews the “totality of the circumstances” with respect to voting discrimination claims, they should consider the extent of the history of voting rights discrimination within the jurisdiction; the extent to which voters experience discrimination related to education, employment, and health that affects their ability to be civically engaged; and whether campaigns have been characterized by implicit or explicit racial messages, among other things.
Other provisions in the VRAA are also intended to protect voting rights. For instance, prior to the Shelby County decision, the Department of Justice sent trained federal election observers to certain jurisdictions with a need certified by the attorney general, which was based partly on the VRA Section 4(b)’s coverage formula. After Shelby County, the DOJ was limited in their enforcement efforts and ability to send election observers. The VRAA grants the Office of the Attorney General, as the head of the DOJ, authority to determine where election observers are needed to ensure the enforcement of the 14th and 15th Amendments and other federal voting rights laws.
The VRAA also promotes transparency by requiring jurisdictions to provide reasonable public notice of changes to voting practices or methods related to federal elections within a certain time frame depending on the change in question. If a jurisdiction does not comply with the requirement to provide public notice within a reasonable amount of time, then a citizen’s right to vote cannot be denied or abridged based on failure to comply with the change.
Why MWEG supports this bill
The Book of Mormon instructs us to “do your business by the voice of the people” (Mosiah 29:26). The Church of Jesus Christ of Latter-day Saints also works this principle into its governance, stating that “all things shall be done by common consent in the church” (D&C 26:2). America, the world’s oldest democratic republic, was likewise founded on this very principle.
As citizens of such a democratic republic, we hold fast to our goals to 1) create a democracy that is responsible to all citizens and 2) to maximize citizen participation in the electoral process by identifying and abolishing obstacles to equitable access in that process. MWEG’s Principle of Ethical Government (2)(a) states: Political structures and electoral systems should be designed to maximize participation of and provide equitable access to all citizens in a society (see Mosiah 29:32). You can learn more about this principle here.
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