The Voting Rights Act of 1965 is a landmark U.S. federal statute that prohibits racial discrimination in voting. It was signed into law by President Lyndon B. Johnson during the height of the civil rights movement on August 6, 1965. Congress later amended the Act five times to expand its protections. The National Archives and Records Administration stated: "The Voting Rights Act of 1965 was the most significant statutory change in the relationship between the federal and state governments in the area of voting since the Reconstruction period after the Civil War". Other provisions outlaw literacy tests and similar devices that were historically used to disenfranchise racial minorities. The act also contains "special provisions" that apply to jurisdictions with a history of racial discrimination in voting, such as the Section 5 preclearance requirement, which prohibits those jurisdictions from implementing any change affecting voting without first receiving confirmation from the U.S. attorney general or the U.S. District Court for D.C. that the change does not discriminate against protected minorities.
The Roberts Court has substantially weakened the Voting Rights Act in a series of rulings. In Shelby County v. Holder (2013), the court nullified preclearance for states with a history of racial discrimination in voting, reasoning that it was obsolete. The jurisdictions which had previously been covered by preclearance subsequently enacted cuts to early voting, purges of voter rolls, and imposition of strict voter ID laws, In Brnovich v. Democratic National Committee (2021), the court substantially weakened Section 2 of the Voting Rights Act. In her dissent, Justice Kagan referred to the decision as the "now-completed demolition of the Voting Rights Act."
Research showed that the Act had successfully and massively increased voter turnout and voter registrations, in particular among Black people. The Act has also been linked to concrete outcomes, such as greater public goods provision (such as public education) for areas with higher Black population shares, more members of Congress who vote for civil rights-related legislation, and greater Black representation in local offices.
Background
As initially ratified, the United States Constitution granted each state complete discretion to determine voter qualifications for its residents. After the Civil War, the three Reconstruction Amendments were ratified and limited this discretion. The Thirteenth Amendment (1865) prohibits slavery "except as a punishment for crime"; the Fourteenth Amendment (1868) grants citizenship to anyone "born or naturalized in the United States" and guarantees every person due process and equal protection rights; and the Fifteenth Amendment (1870) provides that "[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." These Amendments also empower Congress to enforce their provisions through "appropriate legislation".
To enforce the Reconstruction Amendments, Congress passed the Enforcement Acts in the 1870s. The acts criminalized the obstruction of a citizen's voting rights and provided for federal supervision of the electoral process, including voter registration. However, in 1875 the Supreme Court struck down parts of the legislation as unconstitutional in United States v. Cruikshank and United States v. Reese. After the Reconstruction era ended in 1877, enforcement of these laws became erratic, and in 1894, Congress repealed most of their provisions. From 1888 to 1908, Southern states legalized disenfranchisement by enacting Jim Crow laws; they amended their constitutions and passed legislation to impose various voting restrictions, including literacy tests, poll taxes, property-ownership requirements, moral character tests, requirements that voter registration applicants interpret particular documents, and grandfather clauses that allowed otherwise-ineligible persons to vote if their grandfathers voted (which excluded many African Americans whose grandfathers had been slaves or otherwise ineligible). In the 1950s the Civil Rights Movement increased pressure on the federal government to protect the voting rights of racial minorities. In 1957, Congress passed the first civil rights legislation since Reconstruction: the Civil Rights Act of 1957. This legislation authorized the attorney general to sue for injunctive relief on behalf of persons whose Fifteenth Amendment rights were denied, created the Civil Rights Division within the Department of Justice to enforce civil rights through litigation, and created the Commission on Civil Rights to investigate voting rights deprivations. Further protections were enacted in the Civil Rights Act of 1960, which allowed federal courts to appoint referees to conduct voter registration in jurisdictions that engaged in voting discrimination against racial minorities. However, despite lobbying from civil rights leaders, the Act did not prohibit most forms of voting discrimination. President Lyndon B. Johnson recognized this, and shortly after the 1964 elections in which Democrats gained overwhelming majorities in both chambers of Congress, he privately instructed Attorney General Nicholas Katzenbach to draft "the goddamndest, toughest voting rights act that you can". and other civil rights leaders organized several peaceful demonstrations in Selma, which were violently attacked by police and white counter-protesters. Throughout January and February, these protests received national media coverage and drew attention to the issue of voting rights. King and other demonstrators were arrested during a march on February 1 for violating an anti-parade ordinance; this inspired similar marches in the following days, causing hundreds more to be arrested. Spurred by this event, and at the initiation of Bevel, on March 7 SCLC and SNCC began the first of the Selma to Montgomery marches, in which Selma residents intended to march to Alabama's capital, Montgomery, to highlight voting rights issues and present Governor George Wallace with their grievances. On the first march, demonstrators were stopped by state and county police on horseback at the Edmund Pettus Bridge near Selma. The police shot tear gas into the crowd and trampled protesters. Televised footage of the scene, which became known as "Bloody Sunday", generated outrage across the country. The worst injured was Reverend James Reeb from Boston, who died on Thursday, March 11.
In the wake of the events in Selma, President Johnson, addressing a televised joint session of Congress on March 15, called on legislators to enact expansive voting rights legislation. In his speech, he used the words "we shall overcome", adopting the rallying cry of the civil rights movement. The Voting Rights Act of 1965 was introduced in Congress two days later while civil rights leaders, now under the protection of federal troops, led a march of 25,000 people from Selma to Montgomery.
In South Carolina v. Katzenbach (1966) the Supreme Court also held that Congress had the power to pass the Voting Rights Act of 1965 under its Enforcement Powers stemming from the Fifteenth Amendment:
Original bill
thumb|upright=1.25|alt=refer to caption|[[President of the United States|United States President Lyndon B. Johnson, Martin Luther King Jr., Clarence Mitchell Jr., Patricia Roberts Harris, and other guests at the signing of the Voting Rights Act on August 6, 1965]]
Senate
The Voting Rights Act of 1965 was introduced in Congress on March 17, 1965, as S. 1964, and it was jointly sponsored by Senate majority leader Mike Mansfield (D-MT) and Senate minority leader Everett Dirksen (R-IL), both of whom had worked with Attorney General Katzenbach to draft the bill's language. Although Democrats held two-thirds of the seats in both chambers of Congress after the 1964 Senate elections,
The bill contained several special provisions that targeted certain state and local governments: a "coverage formula" that determined which jurisdictions were subject to the Act's other special provisions ("covered jurisdictions"); a "preclearance" requirement that prohibited covered jurisdictions from implementing changes to their voting procedures without first receiving approval from the U.S. attorney general or the U.S. District Court for D.C. that the changes were not discriminatory; and the suspension of "tests or devices", such as literacy tests, in covered jurisdictions. The bill also authorized the assignment of federal examiners to register voters, and of federal observers to monitor elections, to covered jurisdictions that were found to have engaged in egregious discrimination. The bill set these special provisions to expire after five years.
The scope of the coverage formula was a matter of contentious congressional debate. The coverage formula reached a jurisdiction if (1) the jurisdiction maintained a "test or device" on November 1, 1964, and (2) less than 50 percent of the jurisdiction's voting-age residents either were registered to vote on November 1, 1964, or cast a ballot in the November 1964 presidential election. The bill also included provisions allowing a covered jurisdiction to "bail out" of coverage by proving in federal court that it had not used a "test or device" for a discriminatory purpose or with a discriminatory effect during the 5 years preceding its bailout request.
The bill was first considered by the Senate Judiciary Committee, whose chair, Senator James Eastland (D-MS), opposed the legislation with several other Southern senators on the committee. To prevent the bill from dying in committee, Mansfield proposed a motion to require the Judiciary Committee to report the bill out of committee by April 9, which the Senate overwhelmingly passed by a vote of 67 to 13. On May 26, the Senate passed the bill by a 77–19 vote (Democrats 47–16, Republicans 30–2); only senators representing Southern states voted against it.
House of Representatives
Emanuel Celler (D-NY), Chair of the House Judiciary Committee, introduced the Voting Rights Act in the House of Representatives on March 19, 1965, as H.R. 6400. Later that night, the House passed the Voting Rights Act by a 333–85 vote (Democrats 221–61, Republicans 112–24).
Conference committee
The chambers appointed a conference committee to resolve differences between the House and Senate versions of the bill. A major contention concerned the poll tax provisions; the Senate version allowed the attorney general to sue states that used poll taxes to discriminate, while the House version outright banned all poll taxes. Initially, the committee members were stalemated. To help broker a compromise, Attorney General Katzenbach drafted legislative language explicitly asserting that poll taxes were unconstitutional and instructed the Department of Justice to sue the states that maintained poll taxes. To assuage concerns of liberal committee members that this provision was not strong enough, Katzenbach enlisted the help of Martin Luther King Jr., who gave his support to the compromise. King's endorsement ended the stalemate, and on July 29, the conference committee reported its version out of committee. and the Senate passed it on August 4 by a 79–18 vote (Democrats 49–17, Republicans 30–1). On August 6, President Johnson signed the Act into law with King, Rosa Parks, John Lewis, and other civil rights leaders in attendance at the signing ceremony. To ease the burdens of the reauthorized special provisions, Congress liberalized the bailout procedure in 1982 by allowing jurisdictions to escape coverage by complying with the Act and affirmatively acting to expand minority political participation. Congress amended various provisions, such as the preclearance requirement and Section 2's general prohibition of discriminatory voting laws, to prohibit discrimination against language minorities. Congress also enacted a bilingual election requirement in Section 203, which requires election officials in certain jurisdictions with large numbers of English-illiterate language minorities to provide ballots and voting information in the language of the language minority group. Originally set to expire after 10 years, Congress reauthorized Section 203 in 1982 for seven years, expanded and reauthorized it in 1992 for 15 years, and reauthorized it in 2006 for 25 years. The bilingual election requirements have remained controversial, with proponents arguing that bilingual assistance is necessary to enable recently naturalized citizens to vote and opponents arguing that the bilingual election requirements constitute costly unfunded mandates. which interpreted the Section 5 preclearance requirement to prohibit only voting changes that were enacted or maintained for a "retrogressive" discriminatory purpose instead of any discriminatory purpose, and Georgia v. Ashcroft (2003), which established a broader test for determining whether a redistricting plan had an impermissible effect under Section 5 than assessing only whether a minority group could elect its preferred candidates. Since the Supreme Court struck down the coverage formula as unconstitutional in Shelby County v. Holder (2013), several bills have been introduced in Congress to create a new coverage formula and amend various other provisions; none of these bills has passed.
thumb|The vote breakdown in the US House by party of The Voting Rights Act of 1965
Legislative breakdown
The United States Senate put S. 1964 to a floor vote on May 26, 1965. The Republican Party voted 30 in favor and 2 opposed. The Democratic Party voted 47 in favor and 17 opposed, with 4 not voting.
The US House of Representatives then brought H.R. 6400 to a floor vote on July 9, 1965. The Republican Party voted 112 in favor, 23 opposed, with 5 not voting. The Democratic Party voted 221 in favor, 62 opposed, and 10 not voting.
Provisions
thumb|alt=refer to caption|The first page of the Voting Rights Act of 1965
The act contains two types of provisions: "general provisions", which apply nationwide, and "special provisions", which apply to only certain states and local governments. "The Voting Rights Act was aimed at the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race. Moreover, compatible with the decisions of this Court, the Act gives a broad interpretation to the right to vote, recognizing that voting includes "all action necessary to make a vote effective." 79 Stat. 445, 42 U.S.C. § 19731(c)(1) (1969 ed., Supp. I). See Reynolds v. Sims, 377 U. S. 533, 377 U. S. 555 (1964)." Most provisions are designed to protect the voting rights of racial and language minorities. The term "language minority" means "persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage." Section 2 of the law contains two separate protections against voter discrimination for laws which, in contrast to Section 5 of the law, are already implemented. The first protection is a prohibition of intentional discrimination based on race or color in voting. The second protection is a prohibition of election practices that result in the denial or abridgment of the right to vote based on race or color. In Mobile v. Bolden (1980), the Supreme Court held that as originally enacted in 1965, Section 2 simply restated the Fifteenth Amendment and thus prohibited only those voting laws that were intentionally enacted or maintained for a discriminatory purpose. In 1982, Congress amended Section 2 to create a "results" test, which prohibits any voting law that has a discriminatory effect irrespective of whether the law was intentionally enacted or maintained for a discriminatory purpose. In Thornburg v. Gingles (1986) the United States Supreme Court explained with respect to the 1982 amendment for section 2 that the "essence of a Section 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by Black and white voters to elect their preferred representatives." The United States Department of Justice declared that section 2 is not only a permanent and nationwide-applying prohibition against discrimination in voting to any voting standard, practice, or procedure that results in the denial or abridgement of the right of any citizen to vote on account of race, color, or membership in a language minority group, but also a prohibition for state and local officials to adopt or maintain voting laws or procedures that purposefully discriminate on the basis of race, color, or membership in a language minority group. Under the amended statute, proof of intent is no longer required to prove a § 2 violation. Now plaintiffs can prevail under § 2 by demonstrating that a challenged election practice has resulted in the denial or abridgement of the right to vote based on color or race. Congress not only incorporated the results test in the paragraph that formerly constituted the entire § 2, but also designated that paragraph as subsection (a) and added a new subsection (b) to make clear that an application of the results test requires an inquiry into "the totality of the circumstances." Section 2(a) adopts a results test, thus providing that proof of discriminatory intent is no longer necessary to establish any violation of the section. Section 2(b) provides guidance about how the results test is to be applied. There is a statutory framework to determine whether a jurisdiction's election law violates the general prohibition from Section 2 in its amended form:
<blockquote>Section 2 prohibits voting practices that "result[] in a denial or abridgment of the right to vote on account of race or color [or language-minority status]," and it states that, such a result "is established" if a jurisdiction's "political processes are not equally open" to members of such a group "in that [they] have less opportunity to participate in the political process and to elect representatives of their choice." 52 U.S.C. 10301 . [...] Subsection (b) states in relevant part:
A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.</blockquote>
In Brnovich v. Democratic National Committee (2021) the United States Supreme Court introduced the means to review Section 2 challenges. The Court laid out these guideposts used to evaluate the state regulations in context of Section 2, which included: the size of the burden created by the rule, the degree which the rule deviates from past practices, the size of the racial imbalance, and the overall level of opportunity afforded voters in considering all election rules.
When determining whether a jurisdiction's election law violates the general prohibition from Section 2 of the VRA, courts have relied on factors enumerated in the Senate Judiciary Committee report associated with the 1982 amendments ("Senate Factors"), including:
Section 2 prohibits two types of discrimination: "vote denial", in which a person is denied the opportunity to cast a ballot or to have their vote properly counted, and "vote dilution", in which the strength or effectiveness of a person's vote is diminished. Most Section 2 litigation has concerned vote dilution, especially claims that a jurisdiction's redistricting plan or use of at-large/multimember elections prevents minority voters from casting sufficient votes to elect their preferred candidates. Redistricting plans can be gerrymandered to dilute votes cast by minorities by "packing" high numbers of minority voters into a small number of districts or "cracking" minority groups by placing small numbers of minority voters into a large number of districts.
In Thornburg v. Gingles (1986), the Supreme Court used the term "vote dilution through submergence" to describe claims that a jurisdiction's use of an at-large/multimember election system or gerrymandered redistricting plan diluted minority votes, and it established a legal framework for assessing such claims under Section 2. Under the Gingles test, plaintiffs must show the existence of three preconditions:
- The racial or language minority group "is sufficiently numerous and compact to form a majority in a single-member district";
- The minority group is "politically cohesive" (meaning its members tend to vote similarly); and
- The "majority votes sufficiently as a bloc to enable it ... usually to defeat the minority's preferred candidate."
The first precondition is known as the "compactness" requirement and concerns whether a majority-minority district can be created. The second and third preconditions are collectively known as the "racially polarized voting" or "racial bloc voting" requirement, and they concern whether the voting patterns of the different racial groups are different from each other. If a plaintiff proves these preconditions exist, then the plaintiff must additionally show, using the remaining Senate Factors and other evidence, that under the "totality of the circumstances", the jurisdiction's redistricting plan or use of at-large or multimember elections diminishes the ability of the minority group to elect candidates of its choice. the Supreme Court held that the first Gingles precondition can be satisfied only if a district can be drawn in which the minority group comprises a majority of voting-age citizens. This means that plaintiffs cannot succeed on a submergence claim in jurisdictions where the size of the minority group, despite not being large enough to comprise a majority in a district, is large enough for its members to elect their preferred candidates with the help of "crossover" votes from some members of the majority group. In contrast, the Supreme Court has not addressed whether different protected minority groups can be aggregated to satisfy the Gingles preconditions as a coalition, and lower courts have split on the issue.