August 6, 2015
Private: Retrogression and What It Will Take to Restore the Voting Rights Act
Symposium: The Voting Rights Act at 50, Voting Rights Act, VRA
by Katherine Culliton-González, Senior Attorney & Director of Voter Protection, Advancement Project
*This post is part of ACSblog’s symposium regarding the 50th anniversary of the Voting Rights Act of 1965.
Fifty years ago today, the Voting Rights Act of 1965 (“VRA”) was signed into law. Fifty years ago, across the South brave men, women and children stood up for the fundamental right to vote and put their lives on the line. Some were injured, some lost their lives, and they never stopped marching. They sang “ain’t nobody going to turn me around,” and they meant it. Thanks to their bravery and belief in democracy, we now celebrate the 50th anniversary of the most effective piece of civil rights legislation.
The 1965 VRA immediately reversed the inability of African Americans to register and vote in the South and put a stop to the English-only literacy tests faced by the Puerto Rican community in the North. Since then, numerous forms of racial discrimination in voting have been stopped by the provisions of the 1965 VRA, and our nation has seen dramatic change in the ability of people of color to participate in our democracy. Yet in the past few years, we are retrogressing.
In 2015, many African American men, women and children have been beaten and murdered by police, and this June in Charleston, South Carolina, nine were fatally shot by an armed civilian in a church that was a refuge during antebellum times and during the civil rights movement. Although people of color represent the emerging demographic majority with concurrent potential political power, there is a backlash against immigrants, the majority of whom are Latino. Mothers and their children fleeing violence in Central America have been illegally held in detention centers, and Congress still refuses to even hold a vote on immigration reform. The confederate flag is coming down, but the fight to restore equality is by no means over. Perhaps not coincidentally, when it comes to voting rights and the ability to elect candidates who truly represent the interests of communities of color, we are also retrogressing.
Retrogression is a concept that the Supreme Court eviscerated from the 1965 VRA in its June 25, 2103 decision in Shelby County v. Holder. The Roberts Court inexplicably ruled that the VRA’s formula preventing retrogression in voting rights was no longer constitutional since, as the majority of the justices saw it, we had advanced so much in history that it was not fair to Southern states to have to submit to protections against retrogression. Before the Shelby decision, in states with an ongoing history of discrimination in voting ‒ mostly in the South ‒ all voting changes had to be precleared by the Department of Justice or a federal court to ensure that they were not retrogressive. The Roberts Court struck down the VRA preclearance formula and challenged Congress to enact a new formula based on “current conditions.”
What is retrogression? It is the fundamental idea that in fighting discrimination in voting, we should not go backwards in history. If a state or a county enacts a voting change that would result in less access to the ballot for voters of color, it would have retrogressed, and under the pre-Shelby preclearance rules, it could not enact such a voting change. Advancement Project and our partners are fighting for full restoration of the VRA precisely because we need ample protections against retrogression in voting rights in the South, and the Voting Rights Advancement Act is the only bill that would ensure it.
Fifty years ago today, many could foresee that one day there would be equal access to the ballot because that is what democracy promises, and they were willing to risk their lives for it. What they did not foresee is history repeating itself today.
What is retrogression? Since the Shelby decision, strict voter ID laws that have been held to be intentionally discriminatory poll taxes have to be re-litigated because the Supreme Court has stripped preclearance coverage in Texas. In the meantime, they are test-driven in actual elections. North Carolina’s comprehensive voter suppression bill, also enacted immediately after the Shelby decision, cuts early voting, same-day registration, pre-registration of high school students, and out-of-precinct voting, all of which disproportionately impact African Americans and Latinos. The North Carolina NAACP professes, “This is our Selma.” Polling places are moved away from voters of color in Florida, and in Georgia and Virginia, new forms of purging voters from the rolls are enacted which are no longer subject to federal preclearance. Redistricting that dilutes the voting power of voters of color in Alabama, North Carolina, Texas and Virginia were also all enacted post-Shelby—some are being litigated under the remaining protections of the VRA, and some are being litigated under the Fourteenth Amendment. Some of these new restrictions in voting will be enacted without being litigated because there are simply not enough resources for all the lawsuits needed to protect against retrogression.
The Voting Rights Advancement Act would put back preclearance in all the Southern coastal states from Virginia to Texas because it is desperately needed there. Some may argue that the bill’s restoring these protections against retrogression in voting is not sufficiently based on “current conditions,” as the Roberts Court required in Shelby. But we and our partners who work on the ground facing increasing discrimination in voting believe that even the Roberts Court will be able to see that the current wave of voter suppression is directed at voters of color, targeting the new emerging majority, and retrogressing most of all in the South.
Perhaps this was not clear to the Court when it decided Shelby—after all, the full VRA protections were in place in the South then—but it is quite clear now. We owe it to those who marched for the VRA fifty years ago to protect their vision of equal access to the fundamental right to vote. We need to march forward, pass a law that fully restores the VRA in the South, and not retrogress. We don’t need any more eulogies; instead, we need a strong, next-generation Voting Rights Act so that the emerging majority can also be free.