What’s Good–and Bad–About the New Voting Rights Act

The new amendment to the Voting Rights Act explained

By Brentin Mock Feb 13, 2014

Among the many calls for justice this past weekend at the massive "Moral March" civil rights rally in Raleigh, N.C., was the call for Congress to pass a bipartisan amendment to the currently disabled Voting Rights Act.

Chief Justice John Roberts called for the new amendment when he decided last summer in Shelby v. Holder that the Section 4(b) criteria for determining which areas needed federal approval–or "preclearance"–of their voting changes was obsolete. Much of North Carolina was covered under that criteria before Shelby, but shortly after the Supreme Court gutted Section 4(b), the state passed an appallingly restrictive elections administration bill that likely wouldn’t have passed muster when subjected to VRA approval. 

The original Section 4(b) criteria helped protect voters in most of the southern former Jim Crow states where racial voting discrimination is most embedded. It was also applied to states such as Alaska, where Alaska Natives have been constant targets for disenfranchisement

The new VRA amendment sets a new formula for addressing racial discrimination at the polls, but It’s not clear what places would be covered if passed. The consensus so far is that fewer jurisdictions would qualify under the new formula, likely meaning fewer voters of color protected. 

Here’s an explainer of the proposed voting rights amendment of 2014:

  • First, it sets a new formula that applies preclearance coverage to any state that has committed five voting rights violations in the past 15 years, or any "political subdivision" (like a county or school board district) that’s had three voting violations over the same time period. A subdivision could also come under preclearance if it has exhibited "persistent and extremely low minority voter turnout." More broadly, it allows additional states and subdivisions to be bailed into preclearance if they’re found to have intentionally discriminated against people of color or if their laws inadvertently resulted in discrimination. Currently, a bail-in can only happen if intentional discrimination is found.
  • Second, it forces states and subdivisions to publicly post any changes made to voting procedures, like cuts to early voting or the relocation of a polling place, that occur within 180 days of a federal election. The information has to be posted in a "reasonably convenient and accessible format" within 48 hours of the change being made. They must also publicly post data on the polling resources of any voting district, including that district’s voting-age population, and the number of registered voters, available voting machines and poll workers. Finally, any changes made through redistricting must be publicized within 10 days of the change.
  • The third part reinforces the attorney general’s power to send federal election observers to places where election discrimination has been reported.
  • The last part allows for preliminary injunctive relief when voting rights violations seem imminent, meaning parties can sue to have a voting change temporarily blocked until a full trial determines its legitimacy.
  • But it ain’t all good. Here are a few problems:

    • First, none of this applies to voter ID laws. The original amendment stopped Texas from implementing such a law that could have potentially disenfranchised hundreds of thousands of people of color in 2012, but the new one will ensure no such justice.
    • Second, for determining which areas would fall under preclearance, voting rights violations are usually limited to final court judgments. So, if a court finds that a state ran afoul of civil rights voting laws, or the attorney general blocks a law for similar violations, neither of those would count as a voting rights infraction if a court later overturned either of those decisions.
    • Third, since only final judgements count, other ways of legally addressing voting discrimination like settlements and consent decrees would not constitute violations. Also temporary court injunctions, like what civil rights advocates won in Pennsylvania and Wisconsin against voter ID laws, would not count. What may result now is a deluge of new voting rights lawsuits pushed and appealed to the max — at taxpayers’ expense — whereas under the original version, many cases were resolved before they even saw court.
    • Finally, some voting rights cases include multiple counts, like what we’re seeing right now in North Carolina, where civil rights groups are suing over roughly five different parts of the law that reek of discrimination. But if a final ruling finds that only three of those parts are illegal, does each one count as a voting rights violation, or just one since they’re all filed under the same case? The new legislation doesn’t spell this out.
    • Despite its imperfections, the Voting Rights Act does serve as a solid foundation that members of Congress can improve upon when it finally makes it to a vote. By the same token, they can water it down even more. Either way, it’s better than the nothing that currently exists in Sections 4(b) and 5 of our hard-won voting rights law. 

      Those sponsoring the bill include Rep. John Lewis (D-Ga.) and Rep. Steve Chabot, a Republican from Ohio, who was recently ranked by National Journal as the most conservative member in the House of Representatives. Three other Republicans have signed on as sponsors of the bill as well, all of them from voting rights-plagued states Alabama, Wisconsin and Pennsylvania.

      "While we have made great strides as a country, we know that discrimination is still a reality in too many places," says Wade Henderson, president and CEO of The Leadership Conference on Civil and Human Rights. "The need for an effective, modern day Voting Rights Act that responds to 21st century discrimination across the country is vital to our democracy."