Without federal voting protections, many look to states as the ‘laboratories of democracy’

Without federal voting protections, many look to states as the ‘laboratories of democracy’

by Frances Nguyen

This article was originally published at Prism

The night before the Jan. 6 insurrection in the U.S. Capitol, Virginia state Sen. Jennifer McClellan came across an envelope tucked inside her father’s Bible. Inside was a receipt for $2.12: the poll tax her father paid in 1948 to vote in Tennessee, a financial barrier meant to exclude Black voters in the decades after Reconstruction. Later that month, she carried the weight of that family history as she prepared to introduce the Voting Rights Act (VRA) of Virginia alongside Del. Marcia S. “Cia” Price, the lead sponsor in the Virginia House of Representatives.

As two Black women born and raised in the South, Price and McClellan share similar family histories of voter discrimination, and they joined a host of women of color to create and shepherd what is arguably the most comprehensive voting legislation standing in the country today—all in the former capital of the Confederacy and heartland of Jim Crow. The significance of getting this sweeping legislation passed was not lost on either of them as waves of voter suppression bills were making their way into statehouses across the country, ushering in what many have dubbed “Jim Crow 2.0.” And as the U.S. undergoes the first redistricting cycle in decades without the protections of the federal Voting Rights Act of 1965 and multiple state legislatures put forward maps intentionally gerrymandered to strip communities of color of their electoral power, the need for legislative intervention has never been more clear.

“I have noticed that every time Black and brown people gain social, political, and economic power or advancement, there’s usually a backlash that includes violence, propaganda, and voter suppression,” said McClellan.

There are other historical parallels, too: just as the “Bloody Sunday” attacks on civil rights marchers in Selma, Alabama, horrified the American public and finally galvanized the political will to pass the federal Voting Rights Act of 1965, the Virginia Voting Rights Act made its way through the legislature in the aftermath of the racial injustice that followed George Floyd’s murder. In February 2021, the bill was passed by the Democrat-controlled legislature along party lines, and a month later, then-Gov. Ralph Northam signed it into law, making it the first state-level Voting Rights Act in the South.

While there are several existing state-level Voting Rights Acts—in California, Washington, and Oregon, for example—Virginia’s VRA is the first passed in one of the states previously covered by the federal VRA’s preclearance requirement due to its long history of segregation and racially discriminatory voting laws.

Made up of state Senate Bill 1395 and state House Bill 1890 and modeled closely after the federal Voting Rights Act of 1965, Virginia’s VRA offers a comprehensive package of voter protections against suppression, discrimination, and intimidation, including discrimination and intimidation based on race. The legislation also includes a handful of pro-voting measures, such as requiring translated election and voting materials for certain language-minority populations and accessibility accommodations for voters who are over the age of 65, physically disabled, or require language assistance.

What’s more, it revives in Virginia a now-defunct provision of the federal Voting Rights Act that was key to protecting against gerrymandering: the preclearance regime. Under Section 5 of the federal Voting Rights Act, nine mostly Southern states with a history of racial discrimination, along with several cities and counties, were required to submit any changes to their election procedures—including redistricting maps—to the federal government for review and approval. But in its 2013 Shelby County v. Holder decision, the Supreme Court ruled that the formula for deciding which states Section 5 covered was outdated and thus unenforceable, freeing up states to implement suppressive voting legislation and redistricting maps that diminish marginalized communities’ voter power and access without the federal government preventing it.

But Virginia’s VRA restores preclearance on a local level, requiring local election offices to submit any proposed voting changes for public review or for assessment and potential certification by the state attorney general. In both cases, the state attorney general must evaluate the impact of the proposed change on communities that have been historically targeted for discriminatory voting practices: namely, Black, Indigenous, and communities of color.

Given that the last hope for federal voter protections for the foreseeable future died this January, many are now looking to state-level remedies, and Virginia’s VRA offers a promising model.

For federal legislation, decades of success followed by waning hopes

The success of the Voting Rights Act of 1965 was heralded as “the single most effective piece of civil rights legislation ever passed by Congress.” Signed into law on Aug. 6, 1965, its impact on getting voters of color to the ballot box was almost immediate: In Mississippi, a “special coverage” state under the new preclearance regime, the percentage of registered Black voters skyrocketed from 7% in 1964 to 67% just five years later. Fifteen years after the Act became law, the percentage of registered Black voters in the South was higher than anywhere else in the U.S., and by the mid-1980s, there were more Black public servants in office in the South than in the rest of the country combined.

Beyond increasing Black political participation, the VRA was also an effective safeguard against racial gerrymandering, largely thanks to the preclearance requirement. Under preclearance, covered states had to prove to the Justice Department that proposed laws were not discriminatory before they could go into effect.

“Covered jurisdictions frequently modified or withdrew proposed voting changes after receiving a formal letter from the Department requesting additional information in support of the preclearance submission,” Assistant Attorney General Kristen Clarke testified before Congress last August. Those proposed voting changes that required preclearance included any law, practice, or procedure affecting all redistricting done after the decennial Census. “The preclearance process often resulted in jurisdictions deciding to voluntarily mitigate the impact of potentially discriminatory changes even when the Department did not issue a written request for additional information.”

And when states did not make changes voluntarily, preclearance allowed the Department of Justice to step in and object. In Texas, another state under preclearance before Shelby, the Justice Department has objected to the state legislature’s map-drawing at least eight times in less than three decades. In total, the Texas Tribune reported, the department objected to 207 voting changes made in that time period—more than in any other state subject under special jurisdiction. In fact, a 2018 report from the U.S. Commission on Civil Rights stated that Texas had violated the Voting Rights Act with racially gerrymandered maps in every redistricting cycle since the Act was enacted. Within hours after the Shelby decision was passed down, the state imple­men­ted a strict photo ID law, which had previ­ously been rejec­ted under preclearance.

And in Arizona, which has an independent redistricting commission, the DOJ objected to the commission’s first-ever proposed state legislative map (in its inaugural 2000 cycle) because it divided certain election districts so Latinos would no longer be the majority, forcing the commission to continue revising its plan until it was eventually precleared in 2003.

But now, without an active coverage formula to enforce preclearance, gerrymandered maps can only be challenged after they’ve already been formally adopted.

“I think one of the really important impacts of [the Shelby County case] is that it really puts it on communities of color to litigate after the maps have passed,” said Adam Podowitz-Thomas, senior legal strategist for the Princeton Gerrymandering Project. “By striking down that preclearance regime, you’re putting minority voters on their back foot where they’re having to defend themselves rather than being proactively defended by the government in the way that they had been before.”

While Section 2 of the federal VRA still prohibits racially discriminatory voting procedures, including racial gerrymandering—and provides a right of action for private citizens or the government to bring challenges against them—the Supreme Court’s decision in the Arizona case Brnovich v. Democratic National Committee last July effectively narrowed the scope of those challenges. The Justice Department, for its part, can still proactively sue noncompliant jurisdictions under Section 2, but doing so requires the department to anticipate which jurisdictions could be in violation of the Voting Rights Act, a time- and labor-intensive pursuit that requires research often on the precinct level.

A dead end with Congress

With the Voting Rights Act of 1965 gutted, new proposed bills have been put forward to fill the gaps but so far have gone nowhere in Congress. The Freedom to Vote: John R. Lewis Act would have established nationwide standards for voting access—and, by extension, nullified many of the Republican-led voter suppression bills enacted across the country after Shelby. The legislation also would have restored the federal VRA to its full strength, including reinstating its preclearance provision with a new coverage formula. Additionally, the Freedom to Vote: John R. Lewis Act would’ve made Election Day a federal holiday; instated online, automatic, and same-day voter registration; restored voting rights to formerly incarcerated persons convicted of felonies; made interfering with voter registration a federal crime; and strengthened efforts to draw majority-minority districts under the parameters set under the Voting Rights Act.

“It would have been really transformative from the standpoint of communities of color,” said Michael Li, senior counsel in the Brennan Center for Justice’s democracy program—particularly when it comes to redistricting.

Thanks to Shelby, this redistricting cycle is the first in decades without the full protections of the Voting Rights Act. “What we’re seeing this decade is a lot of racially discriminatory maps in states like Texas and Georgia being defended on the basis of partisanship,” he said. “[The Act] would have banned partisan gerrymandering in congressional redistricting, which would have been huge.”

But on Jan. 19, Republicans in the Senate blocked the bill with the aid of Democratic Sens. Joe Manchin and Kyrsten Sinema.

A model for state-level solutions

Given the effectiveness of the federal VRA of halting racial gerrymandering and other racially motivated voter suppression when it was at full strength, there’s cause to hope Virginia’s state-level version could have a similarly protective impact. Virginia’s VRA outlines a path for Virginians to bring civil lawsuits against any election procedure changes if it would negatively impact minority communities or lead to voter suppression—recreating Section 2 on the state level.

Before Shelby, localities had to submit all proposed changes to the Justice Department, and all submissions were accessible online. “It was pretty easy to have a bird’s eye view of all the different things that were happening in the state,” said Tram Nguyen, co-executive director of New Virginia Majority. Nguyen helped craft the bill language that ultimately became law. But after, “a lot of things were flying under the radar,” she said. “We have 133 localities in Virginia, and I’ll be honest, sometimes you’d get blindsided by the changes that were happening.”

Marcia Johnson-Blanco, co-director of the Voting Rights Project at the Lawyers’ Committee for Civil Rights Under Law, whose team at the Voting Rights Project also worked on the bill, also lamented the lack of visibility on voting law changes once required under federal law. But, at least in Virginia, the notice of passage, as well as the preclearance requirement, are no longer missing. “We really wanted to make sure that those were part of the state voting rights bill, and we do see it as a significant model for other states to emulate.”

Alongside Virginia’s VRA, only three other states have state-level models of the federal Voting Rights Act: California, Oregon, and Washington. California’s (CVRA) makes it easier for voters of color to bring discriminatory vote dilution claims before a court in “at-large” local elections (elections in which all voters cast their ballots for all candidates in the jurisdiction, which can prevent voters of color from voting for their candidate of choice) than it was under Section 2, and Washington’s builds on the CVRA by expanding its scope to both at-large and district-based local elections, whereas Oregon’s applies only to local voting systems for elections for school districts, education service districts, and community college boards. None of these VRAs provide substantial safeguards against racial gerrymandering in either state legislative or congressional redistricting.

And among them, only Virginia includes preclearance in its statute, but that could soon change. The proposed John R. Lewis Voting Rights Act of New York (S.1046/A.6678) is currently with the state legislature and restores preclearance on the state level. Under the federal Voting Rights Act, New York only had certain counties covered under Section 4, but the John R. Lewis Voting Rights Act (NYVRA) would expand coverage across the state. Building on the existing state law voting rights protections, the NYVRA could rival Virginia’s and become “the strongest and most comprehensive state voting rights act to date” if enacted.

A parallel strategy

For the foreseeable future, experts say they are no longer looking to federal courts or to Congress to protect voting rights. “The solution should be federal, but with the way everything is right now, I don’t have any optimism, quite frankly,” said Christopher Lamar, senior legal counsel at the Campaign Legal Center.

Li, for his part, will continue paying close attention to what the states will do next in lieu of federal oversight. “I do think that states are increasingly going to be ‘the laboratories of democracy,’ to use Justice [Louis] Brandeis’ phrase.”

As of Jan. 14, 250 bills with restrict­ive provi­sions had been intro­duced, pre-filed, or carried over in at least 27 states, according to the Brennan Center for Justice; at the same time, 399 bills expanding voter access were also being intro­duced, pre-filed, or carried over in at least 32 states. In the years to come, access to the ballot may expand and constrict with the changes in administration. But with aggressive gerrymandering entrenching one-party control this cycle, the power of the people to influence the tides faces ever more pernicious resistance.

Virginia’s VRA was passed when Democrats had the “trifecta,” in which both state chambers and the governorship were controlled by their party. But last November, Republicans won back the governorship and retook the House of Delegates. And while Virginia’s VRA was enacted through the legislative process, making it harder for future voter suppression efforts to stick, it is still vulnerable.  

“Yes, [the Act] was reactive to Virginia’s history, but it was also proactive because of what we were seeing in other states,” Del. Price told The New York Times last year. “And we knew that we were not immune to it.” So far, in 2022, Virginia leads the nation in new proposed restrict­ive voting legis­la­tion.

“I’ve lost count of how many bills have been introduced trying to roll back all of the advances we’ve made,” said Nguyen. “So, yes, we’re having to do a lot more defensive work.”

But advocates haven’t given up entirely on federal voting protections, either. What’s needed, said Johnson-Blanco, is a parallel strategy. “The state strategy offers an opportunity to build these pockets that allow for voting protections as we continue the federal fight, but there needs to be both. We need to have protections for all voters of color, no matter where they live. Your right to vote should not be determined by your geography.”  

Sen. McClellan agrees, but she knows that willpower on the federal level will require a change in the makeup of Congress. For now, she believes the fight ahead will be among the states. “We can’t just sit back and wait for the federal government,” she said. “We’ve got to fight this out on the state and local levels until Congress acts.”

Frances Nguyen is a freelance writer, editor of the Women Under Siege section (which reports on gender-based and sexualized violence in conflict and other settings) at the Women’s Media Center, and a member of the editorial team for Interruptr, an online space for women experts to disrupt discourse in traditionally male-dominated focus areas. She is currently working on a creative nonfiction portfolio on race, identity, and the American Dream.

Prism is a BIPOC-led nonprofit news outlet that centers the people, places, and issues currently underreported by national media. We’re committed to producing the kind of journalism that treats Black, Indigenous, and people of color, women, the LGBTQ+ community, and other invisibilized groups as the experts on our own lived experiences, our resilience, and our fights for justice. Sign up for our email list to get our stories in your inbox, and follow us on Twitter, Facebook, and Instagram.

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