Voting Rights Act Reauthorization:
2005 marks the fourtieth anniversary of one of America’s most important pieces of civil rights legislation. The Voting Rights Act of 1965 has been of enormous importance in opening the political process up to people of color; since 1964 the number of black elected officials nationwide has increased from 300 to more than 9,100. Further, the Act has been used successfully as a mechanism to move communities from winner-take-all systems to full representation systems, which provide real opportunity for fair representation for all.

Certain provisions of the Voting Rights Act, which require jurisdictions with a history of racial discrimination at the polls to “preclear” changes to election rules, were due to expire in 2007. FairVote supported the campaign for reauthorization of the Voting Rights Act in this Congress.

1) What is the VRA?
2) Why was Reauthorization Important?
3) A Stronger VRA

What is the Voting Rights Act?
The Voting Rights Act was adopted in 1965 in response to discriminatory practices used by the state and local election authorities to limit the ability of people of color to elect representatives.  By making these practices illegal, the act seeks to give all Americans a fair chance of electing representatives. The Voting Rights Act has been used by communities across the country to challenge unfair election rules, and create more inclusive governments. The Act prohibits discrimination against African Americans, Latinos, Asian Americans and Native Americans. Since 1964, the number of black elected officials nationwide has increased from 300 to more than 9,100.

Section Two prohibits laws and practices that dilute the effectiveness of votes cast by racial and ethnic minorities. In particular, Section 2 prevents states and municipalities from engaging in practices designed to make it difficult for racial minorities to elect candidates of their choice. It is enforceable nationwide, empowering both the Department of Justice and citizens to sue jurisdictions for unfair practices anywhere in the nation. The burden of proof in a Section 2 case lies with the challengers. To prove discrimination, they must show that members of the minority community generally vote for the same candidates, while the majority community generally opposes those candidates, and that the minority community has a large enough share of the vote to elect a candidate under a single-member district system.  Since 1982, there has been no need under Section 2 to prove that a voting system was intended to discriminate, simply that it has a discriminatory effect.

Section Five only applies to certain areas of the country with histories of suppressing minority voters via literacy tests. These areas are known as “covered jurisdictions.” Section 5 states that all covered jurisdictions must obtain approval (called “preclearance”) from the U.S. Attorney General or the U.S. District Court for the District of Columbia before any new electoral statutes are enacted or any new electoral practices administered. Section 5 acts as a safeguard against changes that might weaken the voting strength of minority voters, since under it the covered jurisdiction has to prove that any proposed change will not reduce these voters’ ability to elect a candidate of their choice. Section 5 applies to all of Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, and Texas; and most of Virginia, 4 counties in California, 5 counties in Florida, 2 townships in Michigan, 10 towns in New Hampshire, 3 counties in New York, 40 counties in North Carolina, and 2 counties in South Dakota.

Why was Voting Rights Act Reauthorization Important?
While the provisions of Section 2 of the Voting Rights Act are permanent, Section 5 was due to expire on August 6, 2007. Had that happened, places which are currently covered jurisdictions would no longer have been subject to preclearance and would have been free to change their election systems.  

This does not mean that African-Americans, or any other group, will lose their right to vote in 2007. The Fifteenth Amendment states that "[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." In addition, the Voting Rights Act of will still ensure equality in the right to vote, and provide a mechanism for enforcement through Section 2.

Nevertheless, Section 5 is important as a deterrent to localities considering making discriminatory changes, and is a vital protection for many minority communities. It is much faster, more efficient and more cost effective to prevent unfair election laws and practices from being implemented in the first place than to litigate retrospectively. Section 5 has protected full representation systems that give all sections of the community a fair chance of electing a representative. Most notably, a proposed change to the choice voting system used by New York City to elect school board members was rejected since there was a high probability that it would reduce minority voting strength. (Choice voting was abandoned in New York only when school boards as a whole were abandoned.) The fact that proposed election practice changes in covered jurisdictions are still being struck down shows that Section 5 still remains useful and relevant.

FairVote joined with the ACLU, the LCCR, the LDF, MALDEF, NAPALC, NARF, the NAACP and NCLR in urging Congress to renew the temporary provisions of the Voting Rights Act.

A Stronger VRA
Congress in July 2006 renewed Section 5 and strengthened the Act in many ways through The Fannie Lou Hamer, Rosa Parks and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006(HR 9). The renewed Section 203 provides for bilingual ballots and other protections for language minorities in 500 jurisdictions. Section 8 requires federal observers to document and deter intimidation and discrimination at the polls.

The renewal act also overturned several damaging Supreme Court precedents:

1) Section 5 addresses Reno v. Bossier Parish School Board, 528 U.S. 320 (2000), which permitted protected jurisdictions to change voting systems in purposefully discriminating ways as long as minority voting strength was not technically diluted.

2) Section 5 limits the ability of protected jurisdictions to satisfice VRA requirements with "minority influence" under Georgia v. Ashcroft, 539 U.S. 461 (2003). An "influence" district is one where minority voting strength is critical to the election of a given candidate but not enough to let minorities elect their candidate of choice.

3) HR 9 undid the holding in West Virginia University and Hospitals, Inc. v. Casey, 499 U.S. 83 (1991) that forbade prevailing parties in VRA lawsuits from recovering expert witness fees. Because it is laborious and costly to prove a violation of VRA Section 2, this decision was a major disadvantage for prospective plaintiffs relative to normally better funded defendants.

More on the Voting Rights Act from the ACLU
More on the 2007 Voting Rights Act renewal campaign
More on the Voting Rights Act from FairVote
Text of the Voting Rights Act

Full Representation Election Systems Manual A joint project of the Southern Center for Studies in Public Policy and FairVote-the Center for Voting and Democracy. A comprehensive explanation of full representation systems with specific reference to the Voting Rights Act. (.rtf 5.1 MB)

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