In the face of federal backsliding, state Voting Rights Acts provide a promising avenue.
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Dear John,
I am Paul Smith, Senior Vice President of Campaign Legal Center, writing to you today in place of Trevor Potter, who is traveling overseas this week. I want to use this opportunity to focus on an issue of great concern to all who embrace Campaign Legal Center’s mission to ensure that every citizen has equal access to the ballot.
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As a lawyer who has argued before the U.S. Supreme Court ([link removed]) more than 20 times, I have become dismayed by the conservative majority’s rulings over the last two decades that weaken our democracy, a trend that CLC analyzed in a white paper ([link removed]) released last year.
Of note are cases that have severely undermined the federal Voting Rights Act (VRA) which became law in 1965 following a heroic campaign by activists demanding the removal of voting barriers for Black Americans in the U.S. South.
Adding insult to injury, partisan gridlock in Congress has made and continues to make it extremely difficult to pass legislation that will expand the freedom to vote. We did see a major victory late last year with the passage of legislation to update the Electoral Count Act ([link removed]) , which concerns the presidential election process, but many other necessary improvements to our electoral system remain unaddressed.
I know I’ve painted a bleak picture, but there’s a flip side to this story. More and more states are taking matters into their own hands by passing state voting rights acts that codify key protections from the federal VRA.
These laws are not a full replacement for the federal act because their primary target is voting discrimination at the local (city and county) level. But that is no small matter. Local governments interfere with voting in myriad ways. And in some cases, these new state laws are even more comprehensive than the original federal law.
State voting rights acts have already been adopted ([link removed]) in five states: California, New York, Oregon, Virginia, and Washington. Three others, Connecticut ([link removed]) , Maryland ([link removed]) and New Jersey ([link removed]) have introduced voting rights acts this year. CLC strongly supports these measures, which will provide essential protections for Black voters and other voters of color.
To illustrate the importance of state VRAs, consider the notion of preclearance, which requires proof that voting laws are not discriminatory before they can be implemented. For decades under the federal VRA, states and jurisdictions with a history of discrimination had to demonstrate that any proposed election laws and/or practices would not disadvantage Black, Indigenous, Latino or other communities of color. The preclearance section of the VRA was eviscerated in 2013 by the Supreme Court’s ruling in Shelby County, AL v. Holder. ([link removed])
That ruling forced voters and pro-democracy groups seeking to protect voting rights to go to court to stop discriminatory laws, an extremely challenging process. State VRAs, such as the proposals in Maryland ([link removed]) , Connecticut ([link removed]) and New Jersey ([link removed]) seek to revive preclearance by requiring jurisdictions with a history of voter discrimination to get approval for new laws or practices from the state Attorney General or a state court.
As I mentioned, state VRAs can be even more protective of the freedom to vote than federal law. For instance, Virginia’s VRA criminalizes voter intimidation, and the New York VRA expands language access for voters with limited English proficiency.
As we consider the state of voting rights in this country, it is worth noting that today would have been Congressman and civil rights icon John Lewis’s 83^rd birthday. One of the great failures during the last session of Congress was the inability to pass legislation bearing his name ([link removed]) that would undo the damage done by the Supreme Court. The John Lewis Voting Rights Advancement Act would reinstate a preclearance formula and establish new review and approval criteria preventing harmful laws from going into effect. The U.S. House of Representatives passed the bill, but it failed to overcome a filibuster in the U.S. Senate ([link removed]) . In the absence of federal action, states must pick up the slack and enact comprehensive legislation.
Voting should be accessible for all citizens, no matter where they live, the color of their skin or how much money they make. As we have learned time and again throughout our history, it is impossible to achieve this goal without the explicit protection of the law. State voting rights acts provide a viable avenue for making those protections more of a reality for those who need them the most.
Sincerely,
Paul Smith
Senior Vice President, Campaign Legal Center
P.S. Please join CLC for an online discussion this Friday (2/24): "Fair Maps for the People - How Redistricting Shaped the 2022 Election" REGISTER HERE ([link removed])
Donate ([link removed])
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