The Voting Rights Act of 1965 has long been considered a critical piece of federal legislation in the Civil Rights Movement. Enacted to prohibit racial discrimination in voting, specifically, it has protected racial minorities from unfair and predatory voting regulations like literacy tests, poll taxes, character tests, and property-ownership requirements, to name a few. In 2013, the Supreme Court decided on a case that struck down key provisions of the act, stating that they were based on old circumstances that had no logical connection to present day.

Since that decision, there have been numerous disputes occurring in states that were once subject to the old provisions of the Voting Rights Act. Lawmakers in several states–many southern–have started passing legislation with more stringent requirements to vote. It begs the question, is the Voting Rights Act still relevant and effective today?

History of the Voting Rights Act of 1965

The Voting Rights Act was signed into law in 1965 under President Lyndon B. Johnson during the height of the Civil Rights Movement. It was signed in the wake of “Bloody Sunday,” the infamous voting rights march from Selma to Montgomery where 600 people, including current Congressman John Lewis, were brutally beaten by Alabama state troopers. The Voting Rights Act was meant to eliminate discriminatory election practices, as states were still resistant to enforcing the Fifteenth Amendment, which declared that the “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.”

Section 2 of the act mimicked the language of the Fifteenth Amendment by applying a nationwide prohibition on literacy tests to deny citizens of the right to vote. Moreover, the act also contained other special provisions that only applied to particular jurisdictions. Under Section 5, the act required that specific jurisdictions which attempted to pass new voting practices or procedures needed to receive “preclearance” from the Attorney General or the U.S. District Court for the District of Columbia. Section 4(b) of the act defines eligible districts as those which had a voting test in place as of November 1, 1964 and less than a fifty percent turnout for the 1964 presidential election.

For years, the Supreme Court continually upheld the constitutionality of the Voting Rights Act, including Section 5. This included thwarting racial vote dilution through discriminatory annexations, redistricting plans, election method changes, and changes in voter registration standards and procedures. The section was originally enacted for five years, but has been renewed continually since its enactment.

Shelby County v. Holder

In 2013, the Supreme Court ruled in the case of Shelby County v. Holder. The case, which was out of Shelby County, Alabama, concerned both Sections 4(b) and 5 of the Voting Rights Act. Shelby County sued Eric Holder, the Attorney General at the time, arguing that Section 4(b) and Section 5 were facially unconstitutional, and sought a permanent injunction against their enforcement.

After making its way through the lower courts, it finally reached the Supreme Court. The justices had to decide whether the renewal of Section 5 under Section 4(b) restrictions exceeded Congress’ authority under the Fourteenth and Fifteenth Amendments, in turn violating the Tenth Amendment and Article Four of the Constitution.

The Supreme Court held, in a 5-4 opinion, that Section 4 of the Voting Rights Act was unconstitutional. Essentially, the Court stated that the current formula conflicted with equal sovereignty of the states, as the disparate treatment of states was based on forty-year-old facts, which had no relationship to present day. As Chief Justice John Roberts wrote, “Our country has changed and while any discrimination in voting is too much, Congress must ensure that the legislation is passes to remedy that problem speaks to current conditions.”

In Justice Clarence Thomas’ concurring opinion he argued that Section 5 was also unconstitutional, contending that the blatant discrimination against certain voters that Section 5 was intended to protect against no longer existed. According to Justice Thomas, Congress cannot justify the burden of Section 5 without blatant discrimination.

Current Voting Rights Disputes

Since the court’s decision in 2013, many former preclearance states in the South are now embroiled in legal challenges surrounding voting laws. In Texas, the federal district court recently ruled that Senate Bill 14, which required voters to show a form of photo ID before casting a vote, had a discriminatory effect. Senate Bill 14 was passed in 2011, but was blocked by the preclearance requirement of the Voting Rights Act. After Shelby County v. Holder, Texas officials said they planned to enforce the law.

Lawmakers in North Carolina passed a photo ID requirement, and curbed early-voting hours, same-day voter registration, and limited other registration and voting options. This was eventually struck down by the Fourth Circuit, which noted that the provisions targeted African-Americans with “almost surgical provision.” The Supreme Court declined to stay the ruling in a 4-4 split after Justice Antonin Scalia passed away last year. North Carolina has asked the court to hear the case fully, and now that the court has added Justice Neil Gorsuch it’s possible that it could grant the petition for review.

Just recently, a lawsuit has been brought by the Lawyers’ Committee for Civil Rights Under Law on behalf of five organizations regarding the special election slated to take place in June 2017 in Georgia to replace Republican representative Tom Price. Since the Democrat, Jon Ossoff, failed to achieve the fifty percent threshold needed to win outright, a special election will decide his fate, against Republican Karen Handel. The suit alleges that the Georgia law disenfranchises citizens by requiring voters to have registered for the first round to vote in the runoff. Consequently, since the law means that voters would have had to register in March 2017 to vote in the runoff (before the first election even occurred), a large number of Georgians may be completely stopped from voting in the June 2017 election.

It is Still Relevant?

Just four short years ago, the Supreme Court in Shelby County v. Holder was not hesitant to point out how key sections of the Voting Rights Act were not relevant to modern times. The majority opinion concluded that since the act had worked so well in preventing racial discrimination, it was no longer needed. However, given the numerous laws that have sprung up since the court’s decision, it seems that the act is just as necessary today.

After the act’s initial enactment, it had an instant effect on decreasing racial discrimination in voting. Not only did the number of registered African-American voters increase substantially, but the number of African-Americans elected to office also grew. Moreover, economic growth occurred because of the act. A study of 40 North Carolina counties covered by the act found that those counties experienced larger growth in African-American incomes, occupational status, and attracted more revenue from county and other government sources.

Now, without Section 4(b) in effect to determine which jurisdictions must receive approval of any voting law changes, Section 5 has now become relatively inoperative. Thus, this has allowed states to change laws and policies without any federal oversight.

Conclusion

After Shelby County v. Holder, many former preclearance states jumped at the opportunity to pass more restrictive voting requirements. While lower courts have found subsequent legislation to contain discriminatory intent or effect, the Supreme Court has yet to weigh in on them. Thus, with a full court now in place after Justice Gorsuch’s swearing-in, the legacy of the Voting Rights Act is still up for debate.

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

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America is supposed to be the world’s greatest democracy, but can it possibly live up to that promise if its people don’t vote? This article attempts to explain which Americans vote, which don’t, how Congress can fix the issue, and why they probably won’t anytime soon.

Who votes?

If you are rich, old, white, have a college degree, and go to church often, you probably vote. This is the demographic that is most likely to turn up to the polls on Tuesday. According to the Pew Research Center, whites are disproportionately represented at the polls: 37 percent of white people are voters, as opposed to only 29 percent of non-whites. Forty-two percent of those who are over the age of 50 vote, while only 22 percent of those between 18-29 regularly vote. Almost half of all college degree holders vote, while those without degrees turn out at a measly 28 percent. Strangely enough, attending church makes you eight percent more likely to vote.

While the youth vote is low, it has been on the rise recently. Forty-four percent of young people voted in the 2008 election, the highest turnout since 1972. While that number did go down slightly in 2012, it was a still a higher turnout than 2000.

Find more information about who votes from this infographic couresty of Takepart.com.

Via: TakePart.com

How many Americans vote overall?

Not that many– in the 2012 election, only 58.2 percent of the nation voted for President. To put that in perspective, the turnout in the most recent Afghani election was about the same. Even though, the Taliban was threatening to blow up polling stations and conducted suicide bombings two months before Election Day.

In the 2010 midterm elections, it was even worse with only 41 percent of voter turnout. Less than a majority of American citizens voted for their representation in Congress in 2010.

The United States is one of the worst countries in the world when it comes to voter turnout. Between 1945 and 2001, American voter turnout averaged at 66.5 percent. This means we ranked 120 out of 169 countries. The Dominican Republic, Jamaica, and Hungary all had higher voter turnouts than United States.

More embarrassingly, as this video points out, America has the lowest voter turnout amongst developed nations:

Why don’t more people vote?

A plurality of non-voters cite apathy as the main cause. According to the Census Bureau, 26.4 percent of those who did not vote in 2008 chose not to exercise this right because they were uninterested in either candidate. This means that four million registered voters were not going to the polls no matter how easy it was to vote.

However, a significant number of registered voters did not make it to a polling station even though they wanted to vote. Almost 18 percent of registered voters did not cast a ballot because they were too busy, most likely because they were at work that Tuesday.

Why does the Constitution require Election Day to be on a Tuesday?

A video from the appropriately named organization “Why Tuesday” explains this odd rule:

It all goes back to the days of horse and buggy. There was no national electoral date until 1845, when Congress passed a law making it Tuesday. You see, Election Day could not be on Monday, because that would require voters to travel to the polls on horse and buggy on Sunday, which was the Sabbath day. And since Wednesdays were Market Days for farmers, Tuesday was the date that made the most sense.

There have been efforts to change the date, however, there has not been enough support. Rep. Steve Israel (NY-D) has introduced the Weekend Voting Act in multiple Congresses. In the 113th Congress (the current Congress), there has been no meaningful action on the bill and it only has four cosponsors.

So why are no leaders supporting a change? There is a policy explanation and a political explanation.

The policy explanation comes in the form of a study that shows that a change to weekend elections does not significantly improve voter turnout. According to the Government Accountability Office (GAO), early voting would, at most, improve voter turnout by only four percent. The GAO admitted that reporting on potential benefits and downsides of weekend voting was difficult since there was no American case to study, but they did go over 24 independent studies on the topic.

The report also included quotes from state and local officials expressing concern that they might not be able to find volunteers to work the polls if they have to compete with fun weekend activities.

Of course, like all things in Washington, there is a political aspect to this issue.

Weekend voting would disproportionately help the poor get to the polls. Single parents and those who work multiple would benefit from the move to the weekend. So, what’s wrong with that? Well, poor people tend to vote for the Democratic Party, making Republicans unlikely to pass any legislation that would make it easier for them to vote.

If we can’t change the date of Election Day, how else can we boost turnout?

Make Election Day a holiday

Instead of moving Election Day to the weekend, Congress could just declare Election Day a federal holiday, giving everyone the day off of work so that they can vote.

Rainn Wilson from The Office supports that idea in this weird video featuring a 19th century sharecropper voting in modern day America

On the flip side, making Election Day a federally recognized holiday solves none of the problems associated with moving Election Day to a weekend (makes it difficult to attract poll workers, doesn’t guarantee turnout), and it creates the problem of losing a workday in the middle of the week.

Mandate Voting

Congress could also use its taxing power to mandate voting. Australia, the country that boasts the highest voter turnouts, fines anyone who does not go to the polls. While the fine is only A$20 ($18), that is still enough to convince most people to go to the polls.

Mandated voting could also have the added benefit of forcing candidates to run towards the center of American politics as opposed to attracting radicals. If everyone is voting, it makes little sense to try and appeal to people on the far end of the political spectrum. This phenomenon is explained in this video:

Of course, the American people aren’t the biggest fans of mandates recently, so it is unlikely that this will ever happen.

What other challenges do voters face at the polls?

Speaking of voting not being easy, it has actually become more difficult to vote in just the past few years. Here are a few ways that politicians and judges have curtailed access to the polls.

The Gutting of the Voting Rights Act

The Voting Rights Act was passed in 1965 to ensure the right to vote for all Americans. The law outlawed poll taxes and literacy tests, but, most importantly, it places the election laws of specific states and counties under the purview of the federal government. A list of these jurisdictions can be found here. That means that, if any of those states or counties passes a law altering their election format, the Department of Justice has the ability to step in and overturn the law if it is found to be discriminatory.

Well, it used to have this ability. In June 2013, the Supreme Court overturned section four of the law, which determined which states and counties had to get their laws approved by the federal government. The majority opinion stated that the country has changed dramatically since 1965 and that racism in election laws is basically over.

As a result, those jurisdictions are now allowed to make their own election laws without the review of the Department of Justice.

This report from SCOTUSblog shows what happened in Pasadena, Texas after this ruling took place.

Voter ID Laws

As a reaction to this ruling, literally days after it was passed down, states across the country started passing and implementing voter ID laws. These are laws that require voters to present a photo ID before casting a ballot.

The National Conference of State Legislatures has put together an interactive map that shows which states now require or request a photo ID at the polling booth.

Supporters claim that these laws are necessary in order to fight voter fraud. The problem? A News21 analysis shows that there have only been 10 cases of voter impersonation since 2000. That’s one out-of-fifteen million voters during that time period. This form of vote tampering has impacted exactly zero elections.

Opponents argue that these laws are thinly veiled attempts to stop poor people and minorities from voting. 11 percent of US citizens do not have a photo ID, and 25 percent of African Americans do not have voter ID. Since photo ID requires a purchase in most states, the new law prevents poor voters from voting.

Why is it important to get more people to vote?

I’ll let P. Diddy and then-Senate candidate Barack Obama from 2004 take this one:

Conclusion

Americans currently face many obstacles at the polls, and Congress seems to have little interest or stake in solving them. As long as Election Day is still a workday and states pass restrictive voting laws, voter turnout will remain low.

Resources

Primary

Census: Voting and Registration Information From the Census Bureau in 2008

Congress: The Weekend Voting Act

GAO: Improving Voter Turnout

Additional

Pew: Who Votes and Who Doesn’t?

Child Trends: Trends in Young Vote

IDEA: Voter Turnout Rates From a Comparative Perspective

Washington Post: Census Bureau Findings

NPR: Why Do We Vote on Tuesday?

ABC: Democrats Eye a New Election Day

CNN: Election Day Should be a Federal Holiday

BBC: How Australia’s Voting Mandate Works

Guardian: The Supreme Court Guts the VRA…Since Racism is Over

NCSL: Map of States That Have Voter ID Laws

ACLU: Voter ID Laws

Eric Essagof

Eric Essagof attended The George Washington University majoring in Political Science. He writes about how decisions made in DC impact the rest of the country. He is a Twitter addict, hip-hop fan, and intramural sports referee in his spare time. Contact Eric at staff@LawStreetMedia.com.

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