March 04, 2021 HUMAN RIGHTS

Restoring the Voting Rights Act in the Twenty-First Century

by Elizabeth M. Yang

Any meaningful attempt to restore the Voting Rights Act (VRA) should be crafted in a manner to ensure a measure of bipartisan support. Why, one might ask? If Democrats control the House and Senate and Joseph R. Biden Jr. is president, why do we need bipartisan support? I would posit that due to the importance of the VRA, we do not want to have to worry when the political winds turn, because they will turn again.

Before exploring what might comprise a newly revised VRA, one should consider the circumstances that have led us to this point. We must acknowledge the historic inequity, from the outset, of the right to vote and that some of these inequities still exist, over two centuries later.

In 1789, “[w]e the people of the United States” was only 6 percent of the population—adult white males who either owned property or paid property taxes. The Constitution did not include people of color and underrepresented groups; these groups had to work to attain the right to vote given freely to adult white males. Amendments gradually expanded the franchise: 13th: outlawed slavery (1865); 14th: granted citizenship to natural-born or naturalized citizens (1868); 15th: granted the right to vote to African American men (1870); 19th: granted the right to vote to women (1920); and 24th: abolished poll taxes (1964). And in 1965, the Voting Rights Act, the crown jewel of the civil rights movement, was enacted. The act abolished literacy tests and residency requirements, created language minority provisions for ballots, and created a preclearance requirement that all jurisdictions with a history of voting discrimination must receive approval from the U.S. Department of Justice before making material changes to their election laws. The act was supported in a bipartisan fashion and was reauthorized and extended in 1970 (Nixon); 1975 (Ford); 1982 (Reagan); and 2006 (George W. Bush). 

Any meaningful attempt to restore the Voting Rights Act should be crafted in a manner to ensure a measure of bipartisan support.

Any meaningful attempt to restore the Voting Rights Act should be crafted in a manner to ensure a measure of bipartisan support.

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The Voting Rights Act Today

The act was the linchpin in the fight to extend access to the ballot box until 2013 when the Supreme Court issued its decision in Shelby v. Holder. The case sought to invalidate Section 4b of the act, the coverage formula that determines which jurisdictions are covered by the VRA, and Section 5, which mandates preclearance for covered jurisdictions. The Court ruled that Section 4b was unconstitutional and its 40-year-old coverage formula outdated. The Court declined to rule on whether Section 5 was constitutional. Nonetheless, the effect was the same—eliminating Section 4b eviscerated the act’s enforcement mechanism, rendering it toothless.

Following Shelby, calculated rollbacks of voting rights laws have occurred. Jurisdictions that previously had to seek prior authorizations to change election laws can make them with no restrictions. Examples of these changes can be seen in the closure of polling locations, more stringent voter identification requirements, and voter roll purges. Removing the key protective element of the act, which proactively prevented discrimination against voters, turned nearly 50 years of advances in voting rights on its head and created an environment where voters must first suffer an injury to have standing to sue for a remedy. This is an anathema to those who desire to protect and advance the right to vote. What are our options? How do we ensure voting rights protections for all going forward?

Understanding the Need for Voting Rights Legislation

Great challenges exist to ensuring and maintaining voting rights protections for all in an increasingly polarized political environment. Unfortunately, we are far from the days when the VRA was reauthorized and extended on a bipartisan basis. In this moment, we need all involved, not just legislators, to understand that voting rights are at the core of our democracy.

We should strive to create an electoral system that is accessible to all our citizenry, even though we do not agree with one another. Our system of representative democracy requires the representation of all in our government. How do we do this? We must do what is uncomfortable for most; we must put ourselves in the shoes of others less fortunate.

Recently, I was asked, as a person of color, what challenges in voting rights have I experienced. To be honest, my greatest struggle was how to answer the question. While I have experienced racism, I have never had a problem voting. I am fortunate to live in Fairfax County in the Commonwealth of Virginia, which I have just discovered is the third most affluent county in the United States. I have never had to wait in an exceptionally long line to vote; I have photo identification; I can read my ballot; I can easily access my polling place; and my right to vote has never been questioned. I share this not to say that voting rights are not an issue for me, instead to say that I know I am extremely fortunate to be able to vote without obstacles in a jurisdiction that has a fairly robust election budget, vis a vis other jurisdictions, and that there are many individuals in the United States who cannot say the same.

Voter Fraud

Historically, under the guise of preventing voter fraud, legislation has been enacted that has the ultimate effect of voter suppression: more stringent voter identification requirements, restrictions on early voting and mail ballots, and purging voter rolls, to name a few. The 2020 election cycle has debunked the notion that voter fraud is systemic or rampant. Even the “dean” of republican election lawyers, Ben Ginsberg, who served as the republican co-chair of the 2013 Presidential Commission on Election Administration and counsel to George W. Bush in the 2000 Supreme Court case of Bush v. Gore, has stated that there is no systemic election fraud, that there is no widespread evidence of individuals voting twice. If that is taken at face value, then we must acknowledge the true reason for restrictions on voter participation and remedy those actions.

Election Administration in the United States

Federal, state, local, and territorial elections are administered by individual states and localities in the United States. There is no national election law. Even in a single state, jurisdictions administer elections differently, including procedures, machinery, and ballots. This system is not likely to change in the future but can lead to disparate methods of election administration and regulations that alternatively encourage participation and others that seek to limit access.

Reimagining the Voting Rights Act in the Twenty-first Century

The road to a new and improved VRA should include an educational component. There is a gap that must be bridged for those who do not understand that representative democracy means that all should have representation, as well as an acknowledgment that voting experiences, or a lack thereof, are not the same for everyone. There will be some who say education should not be a burden to be shouldered by advocates. Our current political climate and history might suggest otherwise. Undoubtedly, there will always be some who oppose voting rights, for whatever reason they concoct, but there will also be some who might be willing to be led to embrace efforts to create a more inclusive process. The VRA of years past was a bipartisan effort, of course with some bumps along the road, but still always on track for reauthorization and extension.

Republicans and Democrats in Congress must work together to resurrect and amend Section 4b to protect voting rights more equally, thus bringing force back to the VRA. Any new modern coverage formula must include past and present discriminatory practices, as well as provide for a mechanism for covered jurisdictions to show that such practices no longer exist and qualify for an exemption.

Finally, funding of elections must become a priority. The success of democracy is measured by the fact that voters are able to participate freely and easily. Thus, when injustice occurs, perceptions develop that denigrate democracy, and some may decide their vote is not important or will not be counted—all of which has the effect of chilling democracy. Jurisdictions must be given proper funding to ensure the proper administration of elections. All other issues aside, no voter in the United States should have to wait in line for five hours to exercise their right to vote, and if a jurisdiction requires voter identification, it should provide one to the voter upon registration, if necessary.

I have attempted to create a realistic roadmap for a Voting Rights Act that acknowledges the challenges of voting in the twenty-first century. The struggle for voting rights has been an uphill climb since its inception. We find ourselves going two steps forward and then, all of a sudden, we are one, two, three steps back. We must remain vigilant in our quest to guarantee access to the ballot box for all eligible members of our citizenry. Our electoral process, the bedrock of our representative democracy, is too precious to squander for individual or partisan gain. Instead, we must cherish our right to vote and work together to ensure that all citizens are given the same opportunities to vote.

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Elizabeth M. Yang

President, WStrong LLC

Elizabeth M. Yang is president of WStrong LLC, a strategic business coaching and consulting firm dedicated to individual and institutional well-being and advancement. She is a national expert in election law and is currently a member of the ABA Standing Committee on Election Law and the ABA Commission on the Nineteenth Amendment.