The Voting Rights Act was signed into law 50 years ago to rectify a “clear and simple wrong.” Throughout the Jim Crow South, African Americans were systematically denied their right to vote through tactics like literacy tests and poll taxes. The Voting Rights Act outlawed these and other targeted voting restrictions. It also sought to prevent future violations in particularly problematic regions of the country through Section 5 of the act, which requires certain jurisdictions with a history of discrimination to submit any proposed changes in voting procedures for “pre-clearance” by the federal government. This pre-clearance safeguard has allowed the Department of Justice to block discriminatory changes to voting laws over 700 times between 1982 and 2006. Unfortunately, this pre-clearance protection was dismantled by the U.S. Supreme Court in 2013, just a day before the court also struck down the Defense of Marriage Act (DOMA). While Section 5 was technically left untouched, with Chief Justice Roberts writing for the majority, the court ruled that Section 4(b) of the Voting Rights Act, which determined which jurisdictions would be subject to pre-clearance, was unconstitutional because it relied upon formulas that were out of date. The effect of this ruling essentially stripped the federal government of its ability to block discriminatory voting laws in those places until a new formula is established.
Underlying this attack against the Voting Rights Act, and other critical civil rights law, is the theory that our Constitution generally requires our laws to be “colorblind” and treat citizens the same regardless of racial differences. While such an approach may appear to be an effective way to achieve racial equality, it is ultimately self-defeating. In a society that is built on structural inequalities based on race, treating people the same regardless of their race only perpetuates existing inequalities and outcomes. That cannot be the promise of our Constitution.
Since the ruling two years ago, many states have been able to pass more restrictive voting laws, including: gerrymandering districts with high proportions of minority voters, changing polling places with little notice, implementation of mandatory photo ID requirements, disqualification of registration based on a recent move, and reducing or eliminating early or absentee voting. While these restrictions may not appear as “clear and simple” a wrong as those from the 1960s, they have the same effect of disenfranchising people of color. For example, eliminating or reducing same-day registration, absentee voting, and early voting makes voting more difficult for people of color, who are disproportionately in lower wage jobs with inflexible job schedules. Photo ID requirements also have a greater impact on people of color, who are less likely to possess the necessary documents.