The Case for Restoring and Updating the Voting Rights Act A Report of the American Civil Liberties Union 2021 Submitted for the Record in Support of Legislation to Enhance the Voting Rights Act July 14, 2021 ACKNOWLEDGMENTS Sophia L. Lakin, Deputy Director, Voting Rights Project William Hughes, Legal Fellow, Voting Rights Project Kristen Lee, Policy Analyst, National Political Advocacy Department Alton Wang, Legal Intern, Voting Rights Project The authors thank the ACLU attorneys and staff who contributed to this report and prior reports upon which this one is based: Laughlin McDonald, Dale Ho, Katherine Palm, Alora Thomas-Lundborg, Theresa J. Lee, Adriel I. Cepeda Derieux, Lila Carpenter, Madison Perez, Brett Schratz, Amanda L. Scott, Juan Diaz, Kelly M. Hernández, and Marc Alexander Ault. The ACLU also extends special thanks to the law firm Sidley Austin, LLP, for the assistance provided in drafting the version of this report submitted in 2019. TABLE OF CONTENTS Introduction ………………………………………………………..…………………………………… 1 I. Historical overview ....................................................................................................... 5 a. Reconstruction and post-Reconstruction b. Congressional efforts to address voting discrimination prior to 1965 c. The Voting Rights Act of 1965 d. Voting Rights Act amendments and reauthorizations: 1970-1982 e. The 2006 reauthorization II. Congressional authority to remedy racial discrimination in voting after Shelby County ........................................................................................................................... 18 a. Supreme Court review of the Voting Rights Act prior to Shelby County b. Current burdens, current needs, and the equal sovereignty principle announced in Northwest Austin and Shelby County c. Reconciling Shelby County with existing Supreme Court precedent upholding the Voting Rights Act d. Congressional power under the Elections Clause III. Hostility to minority political participation persists at levels that justify a restored and updated Voting Rights Act ..................................................................... 29 a. Current indicia of discrimination b. The public lacks effective tools to enforce their rights under the Constitution and federal law IV. Solutions in the Voting Rights Advancement Act: blocking discriminatory voting changes before they impact voters .............................................................................. 44 a. Preclearance for risky actors and risky behavior b. Congress should enact a more protective preliminary injunction standard c. Notice and transparency provisions Conclusion ................................................................................................................................ 51 Appendix A: Summary of ACLU-related cases since 2006 ................................................... 52 Appendix B: Written testimony of Sophia L. Lakin, June 27, 2021 ................................... 229 Introduction With approximately eight million members, activists, and supporters, the American Civil Liberties Union (ACLU) is a nationwide organization that advances its mission of defending the principles of liberty and equality embodied in our Constitution and civil rights laws. For nearly 100 years, the ACLU has been our nation’s guardian of liberty, working in the courts, legislatures, and communities to defend and preserve the Constitution and laws of the United States. The ACLU’s Voting Rights Project, established in 1965, the same year the Voting Rights Act was enacted, has filed more than 300 lawsuits to enforce the provisions of our country’s voting laws and Constitution. The goal of the Voting Rights Project is to ensure that all Americans have access to the franchise and can participate in the political process on an equal basis. The Voting Rights Project has historically focused much of its work on combating efforts targeting the political rights of minority voters, who continue to face grave threats to their voting rights. In addition to our work in the courts, the ACLU’s Washington Legislative Office has led the ACLU’s efforts to develop and strengthen federal laws protecting the right to vote for decades. In 2015, the ACLU launched its National Political Advocacy Department, and, through our work so far, has launched a 50-state campaign to protect and expand access to the ballot nationwide. More than a century ago, the Supreme Court famously described the right to vote as the right that is preservative of all others.1 We are not truly free without self-government, which requires a vibrant participatory democracy where there is fair and equal representation for everyone. The right to vote is an essential act of self-determination— indispensable to the promise of “government of the people, by the people, and for the people.” Yet since our nation’s founding, racial and ethnic minorities have fought pernicious efforts to block them from political representation. After the Civil War and Reconstruction period—when newly emancipated Black men were, for a brief period, able to exercise their political rights and hold elected office—more than a hundred years of state-sanctioned voting discrimination followed, which prohibited Blacks and other minority groups from political participation.2 By the turn of the twentieth century, official and systematic 1 Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). 2 African Americans did not possess the right to vote prior to the Civil War. With the ratification of the Fourteenth and Fifteenth Amendments in 1868 and 1870, African Americans and others were granted the right to vote free from racial discrimination, U.S. CONST. amend XV, § 1; see U.S. CONST. amend. XIV, § 1, and both amendments gave Congress express power to enforce the amendments with appropriate legislation. U.S. CONST. amend. XIV, § 5; U.S. CONST. amend XV, § 2. But after a brief period of federal enforcement action following the Civil War, Congress and the executive branch abandoned those efforts. For the next hundred years, Southern states undertook sweeping efforts to disenfranchise African Americans and other minority voters by continuing to enact procedural barriers and discriminatory prerequisites to voting, such as literary tests, and through state- sanctioned violence. See ALEXANDER KEYSSAR, THE RIGHT TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN THE UNITED STATES 69-93 (Basic Books 2000); see also Section I infra for more on the historical background leading up to the ratification of the Fourteenth and Fifteenth Amendments and adoption of the Voting Rights Act of 1965. 1 attempts to block people from voting based on their race or ethnicity had greatly intensified. Many whites feared the exercise of political power by minority voters, and ideologies of racial hierarchy were popular concepts undergirding the structure of numerous state constitutions and for entrenching white supremacy.3 Congress enacted the Voting Rights Act in 1965 after trying and failing for almost a century to remedy the affliction of racial discrimination in the voting process and the failure to dismantle state-sanctioned disenfranchisement of African Americans in particular.4 The most powerful enforcement tool in the Voting Rights Act is the federal preclearance process, established by Section 5. It requires states and political subdivisions with the worst records of voting discrimination to federally “preclear” voting changes, either administratively with the Attorney General or through a declaratory judgment action in federal court. Section 4(b) of the Act established the criteria identifying jurisdictions that would be subject to preclearance, i.e. the “coverage formula.” Section 5 requires covered jurisdictions to demonstrate that a proposed voting change does not have a discriminatory purpose or effect before the change can be enforced. Since its enactment in 1965, Section 5 has had the greatest impact in dismantling voting discrimination of any congressional action, successfully blocking more than 1,000 instances of discriminatory election rules advanced by state and local officials that would have weakened minority voting power or blocked minority voters from casting a ballot altogether.5 Section 5 also served as a strong deterrent against countless discriminatory voting changes from going forward.6 Because of its effectiveness, Congress reauthorized Section 5 four times, most recently in 2006.7 At the time, Congress concluded that although there was significant progress in reducing barriers to voting, there was continued evidence of a pattern of racial discrimination in the covered jurisdictions that justified reauthorization of Section 5’s protections.8 3 Many of these state constitutional provisions remain today and continue to lock in unequal representation and political conditions. See, e.g., Evidence of Current and Ongoing Voting Discrimination: Hearing Before the Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the Judiciary, 116th Cong. (2019) (testimony of Derrick Johnson, President, NAACP, discussing historical context of provision in the Mississippi Constitution requiring majority vote requirement for both the state’s popular vote and state House districts for any statewide office and resulting exclusion of successful Black candidates for statewide office); JEFF MANZA AND CHRISTOPHER UGGEN, LOCKED OUT: FELON DISENFRANCHISEMENT AND AMERICAN DEMOCRACY 59-66 (Oxford Univ. Press 2008) (discussing racial origins of felon disenfranchisement