The recent Supreme Court decision on the Voting Right Act will have wide repercussions, particularly for Virginia, a state which was previously held to the preclearance requirement that was just struck down on Tuesday.
For those who are unfamiliar with the act, one of the key provisions for deterring and preventing racial discrimination at the polls was a procedure called “preclearance”. Certain states and counties that had a troubled history with discrimination and low turnout at the polls had to have any changes made to their election laws “precleared” by the federal Department of Justice before implementation. These states and counties were identified in 1965, when the Voting Rights Act was first passed, by using a formula based on turnout statistics and the use of voter suppression devices, such as poll taxes or literacy tests. Most of the states and counties identified in 1965 remained under the preclearance requirement until today, including most of Virginia.
The Supreme Court ruled that the formula used for the Voting Rights Act is outdated and is no longer applicable to today’s political landscape. The act remains in place, but the important preclearance requirement is no longer in force. As a result, litigation is, at present, the only avenue to challenge supposedly discriminatory election laws. Unlike the preclearance requirement, this avenue is possible only after the law has been implemented. The Voting Rights Act is now a much less powerful protection against voting discrimination.
The court decision allows for congressional action to replace the old formula with one more suited to current circumstances, but the general consensus among political analysts is that such action is unlikely. If, however, Congress decided to update the formula, who would actually be required to preclear? One proposal introduced in 2006 by the late Charlie Norwood (R-GA), follows the logic of the old formula but updated to today’s political landscape.
Virginia today would be largely unencumbered by preclearance requirements if the old formula were updated using recent data (and it would remain free of preclearance requirements under most other alternate proposals, as well). This illustrates both the strides that Virginia has made in terms of voting participation and the limitations of the old formula. The formula does not consider Virginia practices like ex-felon disenfranchisement or some restrictive voter registration laws as particularly discriminating, while others might think differently. Some argue that the old formula was merely a proxy for selecting those jurisdictions that everyone knew were discriminating along racial lines and that the specifics of the formula were meaningless.
Black turnout surpassed white turnout for the first time during the 2012 election in Virginia. Despite the laudable changes in Virginia since 1965, and increased voter participation among the commonwealth’s black communities, the recent Supreme Court ruling is troubling. Recent voter photo ID proposals in Virginia, the General Assembly’s gerrymandering shenanigans earlier this year, and the fact that one in five voting-age blacks in Virginia is disenfranchised due to criminal histories illustrate how significant unevenness remains in accessibility to the right to vote. It is undeniable that the old formula is outdated. However, today’s political landscape, still largely defined along racial lines, requires continuing vigilance in protecting the right to vote for everyone.
Dustin Cable is a Policy Associate at the University of Virginia’s Weldon Cooper Center for Public Service where he conducts research on topics that lie at the intersection of demographics, politics, and public policy.