by Franita Tolson, Betty T. Ferguson Professor of Voting Rights, Florida State University College of Law; Faculty Advisor, Florida State University College of Law ACS Student Chapter
The Civil Rights Act of 1964 is a landmark piece of legislation, responsible for eradicating much of the discrimination that racial minorities confronted in places of public accommodation such as hotels, restaurants and movie theatres; in seeking employment and applying for public benefits and in attending integrated public schools. Among its many accomplishments, the Act also laid the groundwork for nondiscriminatory access to the ballot. In particular, Title I of the Act provides that, “All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, etc. … shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude ....” Despite a promising start, this provision quickly fell into relative obscurity because the Voting Rights Act of 1965, passed a little over a year after Title I, imposed more stringent restrictions on racial discrimination in voting.
Recent cases illustrate that the time has come to revisit Title I of the Civil Rights Act. In Shelby County v. Holder, the Supreme Court invalidated section 4(b) of the Voting Rights Act which, together with section 5, required certain jurisdictions to preclear all changes to their electoral laws with the federal government before the changes could go into effect. The preclearance regime was a type of federal receivership for jurisdictions, mostly in the south, that had pervasively discriminated against African Americans in order to ensure that any new laws would not undermine minority voting rights. In the year since Shelby County, the loss of the preclearance regime has forced advocates to be more aggressive in using creative legal arguments in voting rights litigation. For example, in Frank v. Walker, a federal district court judge invalidated Wisconsin’s voter identification law, the first successful challenge to these restrictions using section 2 of the Voting Rights Act. Section 2 prohibits states from abridging the right to vote on the basis of race and applies nationwide.
Like section 2, Title I of the Civil Rights Act stands as a possible litigation alternative to the preclearance provisions of the Voting Rights Act. In addition to its general requirement of nondiscriminatory access to the ballot, section 2(A) of Title I provides that, “No person acting under color of law shall in determining whether any individual is qualified under State law or laws to vote in any election, apply any standard, practice, or procedure different from the standards, practices, or procedures applied under such law or laws to other individuals within the same county, parish, or similar political subdivision who have been found by State officials to be qualified to vote.” This provision prevents states from applying voter qualification standards differently to similarly situated individuals.