Racial discrimination still needs to be addressed, says GW Law Professor Spencer Overton.
Aug. 5 was the 50th anniversary of the signing into law of the Voting Rights Act, seminal legislation that prohibited racial discrimination in voting by outlawing discriminatory electoral practices used in some states. In its five decades, the Act has continued to evolve. Even now, its protections are in flux.
Spencer Overton, a professor at the George Washington University Law School, specializes in voting rights and campaign finance and is president of the Joint Center for Political and Economic Studies. He spoke to GW Today writer Ruth Steinhardt about the VRA’s history, its impact and its uncertain future.
Q: Why do we have the Voting Rights Act?
A: In many parts of the country, particularly in the South, blacks were historically prevented from registering and voting. For example, in 1965 less than 20 percent of African Americans in Alabama were registered to vote. In Mississippi, it was less than 7 percent. Local registrars used literacy tests, interpretation tests, poll taxes and violence to exclude black voters.
The repressive activities became visible nationwide on March 7, 1965, when Alabama state troopers attacked peaceful demonstrators in Selma, Ala. The violence was broadcast around the country. Congress responded by drafting the Voting Rights Act, which was signed into law by President Lyndon B. Johnson that August.
It wasn’t only black voters who were to be protected by the VRA. In 1975, Congress updated it to cover language minorities, which included many Latinos, Asian Americans and Native Americans.
Q: What have been the Act’s successes?
A: They are substantial. In former Confederate states, the VRA has erased a 30-point gap in registration and turnout rates between blacks and whites in presidential elections. The Joint Center published a comprehensive report on the effect of the VRA that includes a lot of the quantitative electoral gains, but most importantly, all elected officials have become more responsive to voters of color. There are more equitable federal, state and local policies and federal appointments.
There are still significant disparities, however. For example, African Americans make up about 12 percent of the citizen voting age population (CVAP), but comprise only 6 percent of city councils. Latinos make up about 11 percent of the CVAP, but are only about 3 percent of city councils.
Q: What was the effect of the Supreme Court striking down Section 4 of the VRA?
A: The VRA in its original incarnation did a number of things. It suspended literacy tests, allowed federal officials to register voters and so on, but its most important provision was the special preclearance section. Certain geographic areas with a history of discrimination had to submit any election law changes before they could be implemented. That was important because lawsuits are slow and expensive, and too often they don’t detect—or can’t stop—a discriminatory change before it is used in an election. [Last week, for example, a federal appeals panel ruled that a strict voter identification law in Texas was in violation of the VRA. Unfortunately, the law had already been in effect during one federal election. –Editor] Under the coverage formula, all or parts of 16 states had to submit potential laws for clearance. Most were in the South and Southwest, where there are large African American and Latino populations.
But in 2013, the Supreme Court said the coverage formula was outdated and struck it down. This effectively meant that the covered states, where discrimination was and remains a problem, no longer had to submit changes for federal approval. It gutted the most effective part of the VRA.
Politicians took advantage of that. Within hours of the decision, Shelby County, Texas—the district at issue in the Supreme Court case—announced that it would enact a restrictive ID law. A federal district court eventually ruled that that law was discriminatory, and the decision is now on appeal.
Districts in Texas and Alabama eliminated city council district seats with large Latino and black populations, shifting them to “at-large” seats to dilute the voting power of minority voters. These examples show that simply expanding voter turnout for all Americans will not stop all instances of voter discrimination, and that we need special legal tools tailored to prevent discrimination. Moving city council seats from district elections to at-large elections in the specific Texas and Alabama situations, for example, did not necessarily reduce turnout, but it did dilute minority-voting strength.
Q: Where do we stand now with regard to voting discrimination?
A: First, we need to recognize that voting discrimination still exists. If we want broad participation in the electoral process from Americans of all backgrounds, we have to recognize the special problem of discrimination based on race, and we need special tools to stop it. Racially polarized voting still exists and is more extensive along party lines than it was in 1965. Today, in local elections, a voter’s race is a more significant factor in determining which candidate she will vote for than is her affiliated party, her income, her education, or her age. That means certain politicians have incentives to make it harder for racial minorities to vote. So while a lot of politicians will be celebrating the VRA on this anniversary, right now the fundamental right to vote is in danger.
Q: How can the VRA be made a more effective tool going forward?
A: We need to do three things. First, Congress needs to come together across party lines and restore the Voting Rights Act to full efficacy. There are two update bills in Congress right now. The details are different, but both bills would require preclearance in jurisdictions that have had recent instances of discrimination. When a court finds a jurisdiction that is not covered by preclearance has engaged in discrimination, both bills would make it easier for the court to require that the jurisdiction be subject to preclearance moving forward. Both require nationwide disclosure of certain last minute election changes, and both streamline the process for lawyers to get a preliminary injunction to stop a discriminatory change before it is used in an election.
Second, we need federal and state litigation to expand voter participation.
And third, we need common sense reforms that make sure all eligible voters can participate with as few barriers as possible. That could mean expanding early voting programs to prevent long lines. It could mean same day registration. It might mean ensuring language assistance for voters in local elections. There are a lot of tools available.