July 2014 Bar Bulletin
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July 2014 Bar Bulletin

Looking Back and Looking Ahead: A Year after Gutting the Voting Rights Act

By David A. Perez

 

This month marks a year since the U.S. Supreme Court struck down a key provision of the 1965 Voting Rights Act. The Court's decision sparked a nationwide debate on the state and federal level about how (or whether) we should "fix" the Voting Rights Act or somehow fill the void the Court created.

On the anniversary of the Act's darkest hour, it's time to embrace a new framework for 21st-Century voting rights. This new framework would reinvigorate (and update) those protections in the Act that must emanate on the national level.

But that's not enough. The Court's decision last year shows that we must combine this federal effort with new protections on the state level. Both fixing the Act and also passing state-by-state protections will ensure that our elections continue to reflect this increasingly diverse country.

But first, let's explore why we need a fix in the first place and then discuss the proposed fixes that Congress and the states are considering.

A Timeless Law or an Outdated Act?

In June 2013, the Supreme Court issued its ruling in Shelby County v. Holder, an appeal concerning the constitutionality of Sections 4 and 5 of the Voting Rights Act.

Section 5 involves so-called "covered jurisdictions" throughout the United States. These jurisdictions historically had systemically discriminated against racial minorities - particularly African Americans and Latinos - such that they had to seek federal approval before implementing any changes in their voting practices or procedures. Through this process of "preclearance," the Department of Justice was able to weed out discriminatory practices or reforms (such as moving polling places at the last minute) before the states or local jurisdictions could implement them.

Section 4 contains the "coverage formula," determining which jurisdictions required preclearance. Sections 4 and 5 were always meant to work together and were used to prevent discrimination in advance, rather than relying on drawn out litigation based on a law's discriminatory effects.


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