Voting Rights Act of 1965

1/22/2014

Voting Rights Act Amendment Proposed

A bipartisan group of Congressmembers introduced a bill on January 16, 2014, that would amend the Voting Rights Act of 1965. The Voting Rights Amendment Act of 2014 comes in response to the U.S. Supreme Court’s decision in June, 2013, that struck down a key provision of the act. The amendments would include new provisions relating to the formula to determine which jurisdictions would be subject to “pre-clearance” before changes to voting laws could be implemented, and would require all jurisdictions to provide public notice of some kinds of changes related to redistricting and elections.

NCSL’s Susan Parnas Frederick has analyzed the bill on a section-by-section basis.

U.S. Supreme Court Decision

On June 25, the U.S. Supreme Court struck down Section 4 of the Voting Rights Act (VRA) but declined to rule on the constitutionality of Section 5. Section 2 of the VRA is not affected. Section 4 is the portion of the VRA that identifies the subject jurisdictions and the criteria used to determine whether a jurisdiction is subject to Section 5. Section 5 is the section of the VRA that requires a covered jurisdiction to ask permission from the federal government for any changes it seeks to make to its voting laws or requirements—a process known as “preclearance.” Section 2 prohibits discriminatory voting practices and procedures for all states.

The court directed Congress to revisit the criteria and the covered jurisdictions currently covered in Section 4 and maintained that it must develop new criteria that better reflect current conditions in the states. If Congress fails to pass legislation revising Section 4, the ruling will affect redistricting when it comes up again in 2020 and may affect new state election legislation in states that have been covered under Section 5 such as voter registration, polling place procedures, voter ID, vote counting, and any other voting and election laws.

Frequently Asked Questions

What is the Voting Rights Act?

In 1965, President Lyndon Johnson signed the Voting Rights Act, establishing that no person can be denied the right to vote because of race or color. In 1975, membership in a minority language group was added. The VRA was an extraordinary remedy under the U.S. constitutional system of federalism to deal with widespread and rampant discriminatory voting practices in some states and counties. Congress has reauthorized the VRA several times since its enactment, most recently in 2007, but has never revisited the criteria in Section 4.

What is Section 4?

Section 4 sets out the coverage formula and defines the covered jurisdictions under the VRA. At the time of passage, Section 4 identified a covered jurisdiction as one that had low voter registration and turnout and one that used discriminatory tests as a prerequisite to voting.

What is Section 5?

Section 5 requires that some jurisdictions—those designated by Section 4—submit any changes to voting procedures in state election law for approval at the federal level. These laws, while passed by the legislature and signed by the governor, do not become legally enforceable until approval is granted. For more details about the Voting Rights Act, see the U.S. Department of Justice’s explanation.

What states are "covered" by Section 5?

The covered jurisdictions include all or part of the following states: Alabama, Alaska, Arizona, California, Florida, Georgia, Louisiana, Michigan, Mississippi, New Hampshire, New York, North Carolina, South Carolina, South Dakota, Texas and Virginia. These jurisdictions were identified based on specific measures, such as low voter registration within a minority community.

How does federal “pre-clearance” work?

Until now, when “covered jurisdictions” passed any laws or regulations that related to voting, they were required to submit the changes to either a three-judge federal court in the District of Columbia or to the Department of Justice’s Civil Rights Division for “preclearance” before the law takes effect. States could choose which avenue to take. The court process, however, could take years to resolve so most jurisdictions opt for administrative approval through the Department of Justice.

Can “covered” jurisdictions be removed from Section 5?

Jurisdictions that are “covered” have long been able to ask to “bail out,” or be removed from the list of covered jurisdictions.  This involves seeking a declaratory judgment from a three-judge panel in the U. S. District Court for the District of Columbia, and is based on that jurisdiction’s recent history. If there is no evidence of discriminatory voting practices in recent years, a jurisdiction might be removed from the Section 5 requirement.

How does the recent Supreme Court ruling relate to this?

Shelby County, Ala., sued the U.S. attorney general in 2010. The county argued that if the original qualification test for coverage had been updated, neither the county, nor Alabama as a whole, would still be covered. A federal judge ruled against Shelby County and upheld the constitutionality of Section 5.  Shelby County appealed, and it is this case that the U.S. Supreme Court ruled on, saying that Section 4 is unconstitutional.

Additional Resources