This commentary is part of a blog symposium honoring the 50th anniversary of the Voting Rights Act. Other contributions come from Roger Clegg, Rick Hasen, Kermit Roosevelt, J. Christian Adams, Brianne Gorod and Rick Valelly.
Much of the commentary surrounding the 50th anniversary of the Voting Rights Act has focused, quite rightly, on the extent to which things have changed (or not) since its passage. For the most part the relevant change that people argue about concerns progress in race relations and official forms of voting discrimination. Everyone recognizes that our current times differ from the era of Jim Crow, but we disagree whether the scourge of racism has been sufficiently excised from our polity that the legal regime used to combat it has outlived its usefulness.
This way of measuring progress since the 1960s, however, distracts from the many other relevant changes that make protecting voting rights both more difficult and more urgent. Those other changes include: the new partisan valence of voting rights protections, the expansion of voting rights concerns beyond the South, the shift from a Black-White dichotomy to a multiple racial group pluralism, the move from issues of access to issues of representation and then back to access again, and a focus on the right to vote as compared to antidiscrimination.
Racial politics and partisan polarization
Voting rights and election reform are now topics, like so many others, about which the parties are in complete disagreement. Moreover, because voting reform strikes at the core of the parties’ interests in getting elected, even the normal levels of partisan disagreement are elevated due to the perceived stakes for control of government. Given that racial minorities overwhelmingly support Democrats, laws that either protect or obstruct minorities’ access to the ballot produce expected divisions between the parties.
Contrast the present polarization over voting reform with the support for the Voting Rights Act of 1965. The final bill passed in the House by a vote of 328 to 74 (Democrats 217-54, Republicans 111-20), and in the Senate by a 79-18 vote (Democrats 49-17, Republicans 30-1). The law was enacted by a Democratic Congress with significant Republican support, signed by a Democratic President, and, more importantly, targeted Southern states run almost exclusively (and monopolistically) by Democrats. Although President Johnson recognized the danger the law would pose for his party’s fortunes in the South, voting rights was not a partisan issue. Today, in contrast, race can be used as a proxy for party, and voter regulations designed to add to or subtract from a party’s political fortunes will often have predictable effects on the voting rights of racial minorities.
From region to nation
The Voting Rights Act, while containing several provisions that applied nationwide, was primarily concerned with the disenfranchisement of African-Americans in the South. Today, southern states still are disproportionately represented among states with restrictive voting laws. However, the fight for voting rights has extended well beyond the South. Litigation over voter identification and early voting has occurred in Wisconsin, Indiana, and Ohio, as well as in many of the former Confederate states previously covered under Section 4 of the VRA. Because partisan control of state governments is often the most important factor in determining a state’s voting rights policy, region is a less important determinant of election rules.
The move from a black-white to a multiple-race paradigm
Just as the South-North dichotomy has lost relevance, so too the Black-White paradigm needs to be updated to account for an America that has become more racially diverse. Different racial minorities face different threats to their voting rights. African-American turnout, for example, has reached parity with Whites in recent Presidential (if not midterm) elections, while Latino turnout lags far behind. Issues intertwined with citizenship and language are unique voting rights concerns in the Latino and Asian communities. Native Americans face outright discrimination with parallels to classic efforts at disfranchisement.
In addition, when it comes to redistricting and representation, the different rates of population density, voter eligibility and turnout, and levels of racial polarization in the electorate require different strategies to achieve effective representation for different groups. Finally, because different groups take advantage of expanded voting opportunities (such as early in person or mail balloting) at different rates, retrenchment will have disparate effects on different groups.
From access to representation to access again
The 2000 election controversy represented a watershed moment in voting rights policy. In the years immediately preceding Bush v. Gore, most of the original concerns about voter access that animated the VRA had subsided and been replaced by a preoccupation with effective minority representation, particularly as it relates to the redistricting process. Since 2000, though, new questions of voter access have returned to the spotlight.
In part, this is a result of the newfound recognition that a small number of votes could sway even a presidential election. But attention to voter access also grew out of the policy debate over the Help America Vote Act (HAVA)—the legislation passed by Congress to respond to the many dysfunctionalities evidenced in Florida and elsewhere in the 2000 election. HAVA enshrined in federal law a (relatively liberal) voter ID requirement for first-time voters who registered by mail. However, the partisan battle lines in the voter ID debate became joined at that point, and have lasted to this day.
As a consequence, the debate over voting rights has returned to questions of access, albeit concerning restrictions on access different than the overtly racist ones that motivated the passage of the VRA. Voter ID has become the most prominent flashpoint in the debate. But other restrictions—such as curtailment of early voting periods, regulation of voter registration, and felon disfranchisement—also have become part of the suite of voting policies that divide the parties.
From antidiscrimination to voting rights
Given its goal of eliminating barriers to voting by African-Americans, the original VRA sought both to curtail discrimination and to protect a fundamental right. The anti-discrimination paradigm undergirding the VRA remains, however, a blunt instrument to attack contemporary threats to voting rights, for which the racially discriminatory intent and effect are less visible than they were for the laws the VRA sought to address. Because we have very few federal statutory protections for voting rights, though, the potential racially discriminatory impact of state voting laws often becomes the principal (and difficult) evidentiary question in disputes over voting regulations.
This last point is also one that distinguishes the United States from virtually all modern democracies. We have no right to vote in our Constitution, so the Supreme Court has had to make up such a right out of the whole cloth of the Equal Protection Clause of the Fourteenth Amendment. With the exception of HAVA and Motor Voter, almost all of our voting rights protections deal with discrete populations—the VRA’s protections for groups defined by race and language, federal statutes that protect the voting rights of overseas citizens and military voters, and a few other protections for voters with disabilities.
Election regulation is, under our system, mostly a function of state and local law, and the result is that the quality of democracy that citizens experience will often be a function of where they live. This spotty and inconsistent protection for voting rights we witness in contemporary America requires that, on this 50th anniversary of the Voting Rights Act of 1965, we commit as a nation to doubling down on the VRA’s promise and to protect basic rights of democratic participation for all.
Nathaniel Persily is the James B. McClatchy Professor of Law at Stanford Law School and served most recently as the Research Director for the Presidential Commission on Election Administration.
Editor’s note: Commentaries appearing on Constitution Daily reflect the opinions of their authors, and not those of the National Constitution Center.
