Project Vote
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A SUMMARY OF THE VOTING RIGHTS ACT OF 1965 The Voting Rights Act (VRA) was enacted to ensure that the 15th Amendment of the United States Constitution, which granted persons of color the right to vote1, was properly enforced by the states. It is difficult to understand the significance of the VRA without first considering the impact of previous voter rights legislation. This document provides a summary of the VRA, a synopsis the underlying historical context, and a closer examination of some of the Act’s requirements. Historical Context Shortly after the states ratified the 15th Amendment, Congress enacted the Enforcement Act of 1870 and the Force Act of 1871. These laws provided criminal penalties for interference with the right to vote and small-scale federal election oversight.2 Many states resisted the large influx of African-American voters and candidates by implementing poll taxes, literacy tests, and other mechanisms aimed at limiting access to the polls. From 1957-1964, Congress responded by creating the Commission on Civil Rights and a Civil Rights Division in the Department of Justice. Congress also authorized federal courts to appoint referees to conduct voter registration, and permitted the U.S. Attorney General to pursue litigation against states for violations of the 15th Amendment.3 This strategy failed, however, since it required that the Attorney General attack discriminatory voting laws on a case-by-case basis. In general, newly formulated discriminatory laws followed closely at the heels of successful anti-discrimination suits.4 The VRA significantly strengthened previous legislation. The Act begins with a blanket prohibition against voting standards, practices, or procedures that have a discriminatory impact on members of minority groups and minority groups as a whole.5 It also provides more specific protections by prohibiting literacy tests, restricting poll taxes, and authorizing the appointment of federal examiners and observers to oversee state registration and voting procedures. Equally important, the VRA requires states with a history of discriminatory activity to seek federal approval before making changes to voting laws. Following the passage of VRA and its several amendments,6 a substantial increase in African-American voter registration took effect.
The 15th Amendment of 1869 prohibits states from preventing men from voting on the basis of race, color, or previous condition of servitude. Women were not constitutionally guaranteed the right to vote until passage of the 19th Amendment in 1920. 2 “Reconstruction and Civil War Amendments”, United States Department of Justice. Available at http://www.usdoj.gov/crt/voting/intro/intro_a.htm. 3 Id. 4 Id. 5 42 U.S.C. § 1973 (a), (b) (2005) 6 The VRA was amended in 1970, 1975, and 1982. -1-
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Project Vote Summary of the Voting Rights Act May 24, 2006
Some of the more noteworthy sections of the VRA are summarized below: Permanent Provisions: These provisions, which provide general protections against discriminatory voting procedures in all states, do not expire. • Section 2 prohibits states and political subdivisions from enacting voting standards, practices, or procedures that result in the disenfranchisement of any U.S. Citizen based on race, color, or membership in a language minority group.7 8 Furthermore, a state or political subdivision is in violation of this section if “based on the totality of circumstances”, members of a protected class have less opportunity than others to participate in political processes and elect representatives of their choice.9 10 Section 3 authorizes a court or the U.S. Attorney General to appoint Federal examiners to a state or political subdivision to prevent unconstitutional voter discrimination.11 Also, upon finding a constitutional violation, a court can maintain jurisdiction over a state or political subdivision’s voting procedures for an “appropriate” period of time. 12 Section 10 outlaws poll taxes as a prerequisite to voting.13 It also authorizes the U.S. Attorney General to seek injunctive relief against enforcement of any poll taxes.14 Section 11 prohibits persons acting under color of law from refusing to permit eligible persons from exercising their right to vote.15 It prohibits all persons from intimidating, threatening, or coercing others attempting to exercise voting rights.16 In addition, this section sets forth fines for persons who offer fraudulent information in the registration process17 or attempt to vote more than once.18
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42 U.S.C. § 1973 (a) The Act defines members of “language minority groups” as persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage. 42 U.S.C. § 1973 (c)(3). 9 42 U.S.C. § 1973 (b) 10 In Thornburg v. Gingles, the U.S. Supreme Court highlighted three factors to take into consideration when determining whether redistricting or any other practice that results in vote dilution is a violation of Section 2: (1) Whether the minority group “is sufficiently large and geographically compact to constitute a majority in a singlemember district”, (2) Whether the minority group is “politically cohesive”, and (3) Whether the majority group “votes sufficiently as a bloc to enable it – in the absence of special circumstances… to defeat the minority’s preferred candidate.” 478 U.S. 30, 50-51 (1986). 11 42 U.S.C. § 1973a (a) 12 42 U.S.C. § 1973a (c) 13 42 U.S.C. § 1973h (a) 14 42 U.S.C. § 1973h (b) 15 42 U.S.C. § 1973i (a) 16 42 U.S.C. § 1973i (b) 17 42 U.S.C. § 1973i (c) 18 42 U.S.C. § 1973i (e)
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Project Vote Summary of the Voting Rights Act May 24, 2006
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Section 12 provides criminal and civil sanctions for deprivation of voting rights, including destroying, defacing, or altering ballots or official voting records.19 It also authorizes the Attorney General to request preventative and remedial relief where there are reasonable grounds to believe that voting rights under the VRA are threatened.20 Section 201 eliminated the use “tests or devices” in voting procedures.21 “Tests or devices” encompasses literacy tests, tests of understanding, and tests of good character.22 Prior to enactment of the VRA, these tests were all frequently used to deny AfricanAmericans the right to vote. Section 208 allows voters who require assistance due to illiteracy, blindness, or disability to have any individual of their choice assist them in the voting process. The only limitation is that the voter cannot choose his employer or an agent of the voter’s employer or union.23
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Temporary Provisions: These sections provide further protection to members of language minority groups, and also provide additional safeguards against states and political subdivisions with a history of discriminatory practices. Without an extension from Congress, these provisions will expire. Though Congress has repeatedly chosen to extend these sections beyond the initial expiry, they are subject to expire in August 2007.24 • Specific Protections for Language Minority Groups — Section 203 requires jurisdictions with sufficient language minority populations to provide election materials in the relevant languages. Election materials include forms, instructions, assistance, and ballots.25 Currently, 466 local jurisdictions in 30 states are required to provide language assistance to persons of Spanish, Native American, Alaskan Native, and/or Asian descent.26 Preclearance 27 — Section 4 requires states that meet certain criteria to seek federal approval before making changes to voting laws. This procedure is known as preclearance. In general, a state or political subdivision is subject to this requirement if, on November 1 of 1964, 1968, and 1972, it utilized a test or device and less than
42 U.S.C. § 1973j (b) 42 U.S.C. § 1973j (d), (e) 21 42 U.S.C. § 1973aa (a) 22 42 U.S.C. § 1973aa (b) 23 42 U.S.C. §1973aa-6 24 Congress is currently considering extending the temporary provisions of the VRA in S. 2703/H.R. 9, the Voting Rights Act Reauthorization and Amendments Acts of 2006. 25 42 U.S.C. § 1973b (f)(4) 26 ACLU Voting Rights: About the VRA, available at http://www.votingrights.org/more.php#sect203. 27 States covered in whole are: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia.
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Project Vote Summary of the Voting Rights Act May 24, 2006
50% of its voting age population was registered to vote or voted in that year’s Presidential election.28 A state or political subdivision may request exception from preclearance coverage by demonstrating a record of good behavior during the preceding 10-year period.29 — Section 5 details the preclearance procedures applicable to states that meet the criteria under Section 4. Before enacting new voter legislation, proposals in these states must be screened by the U.S. Attorney General or the United States District Court for the District of Columbia for discriminatory purpose or effect.30 Although the VRA only explicitly states that the U.S. Attorney General can bring suit for violations of Section 5, the U.S. Supreme Court has held that any person or organization with standing can bring suit to enjoin violations of Section 5.31 Although courts have previously expanded Section 5 coverage, 32 33 more recent cases have resulted in setbacks. 34 35 — Sections 6-9, and 13 give the Attorney General authority to appoint Federal observers and examiners to jurisdictions subject to preclearance requirements. Examiners may review voter registration applications and add qualified voters to the rolls.36 Observers monitor polling practices and tabulation procedures to ensure that eligible persons are not denied the right to vote.37
42 U.S.C. § 1973b (b) 42 U.S.C. § 1973b (a)(1) 30 42 U.S.C. § 1973c 31 Allen v State Board of Elections, 393 U.S. 544, 554-57 (1969). 32 In Perkins v. Matthews, the U.S. Supreme Court held that relocating polling places and altering a city’s boundary lines, enlarging its voting population, constituted a change to a “voting standard, practice, or procedure”, which is subject to preclearance under Section 5. 400 U.S. 379, 16-17 (1971). 33 In Morse v. Republican Party of VA, the United States Supreme Court held that a jurisdiction could not avoid preclearance requirements by delegating authority to political parties. Thus, the Republican Party’s decision to require Virginia residents to pay a fee to participate in the convention to elect the party’s senatorial candidate was subject to preclearance because it is the state’s duty to determine how a candidate gets on the ballot. 517 U.S. 186, 24 (1996). 34 In Reno v. Bossier Parish School Board, the U.S. Supreme Court held that an election practice in violation of Section 2 of the VRA or a constitutional provision did not violate Section 5 screening as long as it did not weaken the ability of minority groups to elect candidates of their choice. 520 U.S. 471 (2000). 35 In Georgia v. Ashcroft, the U.S. Supreme Court held that a redistricting plan that diluted minority voting power could survive preclearance as long as the minority group could maintain effective exercise of electoral franchise. For example, a minority group maintains electoral franchise where a non-minority candidate has agreed to take minority interests into consideration. 539 US 461 (2003). 36 42 U.S.C. § 1973e (b), (c) 37 42 U.S.C. § 1973f (2)
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