Chamberlain Democracy Digest | September 4
Welcome back to the Chamberlain Democracy Digest – a collection of what our team is thinking about, reading, and discussing in the Democracy space.
In the lead up to Election Day, The Chamberlain Network is taking a deep dive into U.S. elections and the civic activities that lead up to them. Our hope is to empower all of you to be the voices of truth in your communities. As our democracy rests on trust in our electoral processes, we want to help you build that trust and counter the rumors and disinformation that have become more prevalent in recent years.
Is there a topic you’d like to see covered here? Reach out to us at info@chamberlainnetworks.us with your suggestions!
Part of knowing how to message for today's election challenges is knowing what’s come before – so this week, we’re doing a dive on The Voting Rights Act of 1965.
If you want to jump ahead, here’s an overview of what we’ll cover:
What are the basics I need to know on the Voting Rights Act of 1965?
Has the Voting Rights Act changed since it was enacted in 1965?
What other decisions has the Supreme Court Made about the Voting Rights Act?
Chamberlain Chit Chat (what our staff wants to share this week outside the democracy space)
What are the basics I need to know on the Voting Rights Act of 1965?
The Voting Rights Act was an “act to enforce the Fifteenth Amendment to the Constitution.”
To brush up on your constitutional history:
The 15th Amendment was ratified in 1870 after the Civil War, prohibiting the federal government and states from denying the right to vote based on race, color, or previous condition of servitude.
Despite the amendment being ratified in 1870, Black and brown communities were shut out of political participation due to Jim Crow policies in the South and similar discriminatory structures nationwide.
We couldn’t do a better job than The Brennan Center at explaining the basics of The Voting Rights Act (VRA) – you can read their overview (it only takes about 2 minutes!) here.
“The law has been a hugely successful shield against schemes that limit or dilute the voting power of communities with a history of being marginalized. This protection has been especially helpful in processes like redistricting, which has led to the election of hundreds of federal, state, and local candidates of color in states with a history of discrimination. In the years after the Voting Rights Act’s passage, the disparity in registration rates between white and black voters dropped from nearly 30 percentage points in the early 1960s to 8 percentage points just a decade later. ”
The three sections of the legislation you’ll most often hear referenced are Sections 2, 4b, and 5:
Section 2: “Allows voters to seek judicial relief if they believe that a state or local government has denied or limited their voting rights on the basis of their race, color, or membership in a language minority group” as explained by the Ohio State election law experts at SCOTUS blog (more here)
Section 5: “Requires jurisdictions with a history of discrimination to obtain approval from the Department of Justice or a court before changing voting rules, a process known as “preclearance.” as explained by the Brennan Center. In the original text, all or parts of 16 states were required to submit changes to all major voting and election systems to be approved by the Justice Department or a federal court.
Section 4b: Created a formula outlining the types of histories of discriminatory voting laws that needed to be present in a jurisdiction to be subject to preclearance
If you want more detail on each of the provisions of the VRA as originally enacted, we’ve put together a helpful infographic here:
Has the Voting Rights Act changed since it was enacted in 1965?
Certain components of the legislation expire and require Congressional reauthorization – including both section 4(b) (the coverage formula) and section 5 (preclearance) – if you’re looking for more detail, the ACLU has an overview of what does and does not expire here.
Congress enacted amendments to the Act 5 times, coinciding with the expiration of some or all of the acts provisions
Presidents Nixon, Ford, Reagan, H.W. Bush, and W. Bush all signed reauthorizations of the Voting Rights Act.
While Congress has regularly reauthorized and extended the Voting Rights Act, a number of Supreme Court decisions in recent years have effectively gutted the original provisions and protections of the legislation – most notably in Shelby County V. Holder.
The Supreme Court and Shelby County V. Holder (2013)
The Supreme Court declares the preclearance formula unconstitutional, rendering Section 5 inoperable without further Congressional action.
Perhaps the most consequential decision in dismantling the Voting Rights Act was the 2013 Supreme Court Decision in Shelby County V. Holder – in 2011, Shelby County, Alabama filed suit asking a federal court in Washington, DC to declare Section 5 of the Voting Rights Act unconstitutional. Before the case was taken by the Supreme Court:
April 2011: Shelby County, Alabama filed original suit
September 2011: U.S. District Court for the District of Columbia upheld the constitutionality of Section 5
May 2012: U.S. Court of Appeals for the District of Columbia agreed with the district court (Section 5 was constitutional) & Shelby County appealed the ruling to the Supreme Court
November 2012: Supreme Court agreed to take the case
At the highest level, the 2013 Shelby County decision held that it was unconstitutional to use the coverage formula in Section 4(b) of the Voting Rights Act to determine which jurisdictions are subject to the preclearance requirement of Section 5 of the Voting Rights Act
The Shelby County ruling was narrow (5-4) and generally along ideological lines of the court.
The Majority Opinion — delivered by Roberts, in which Scalia, Kennedy, Thomas and Alito joined — held that the relevant statutory provisions were now unconstitutional because Congress’ requirements must be justified by current burdens and needs. Chief Justice Roberts acknowledged in the majority opinion “...voting discrimination still exists; no one doubts that,” but that the formula in Section 4(b) was not based on contemporary data.
“Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”
The dissenting opinion — filed by Ginsburg and joined by Breyer, Sotomayor, and Kagan — was summarized from the bench “an unusual move and a sign of deep disagreement.” The dissent argued that Congress – not the Court – was the right body to decide whether and where the law was still needed.
“Throwing out preclearance when it has worked and is continuing to work ... is like throwing away your umbrella in a rainstorm because you are not getting wet.”
As Vox explains, the Shelby ruling “released nine states — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia — from the previous preclearance coverage formula. The ruling also affected some counties and townships in California, Florida, Michigan, New York, North Carolina, and South Dakota.”
In practice, this means that Section 5 is inoperable until Congress enacts a new coverage formula (which it has yet to do — more on that below.)
This clip from PBS details some of the immediate effects of the Shelby County decision, and some of the ways in which changes to voting laws across the country began to take place all over the country:
Source: PBS Frontline
“You almost have to be an attorney to understand how to register to vote in Wisconsin”
What other decisions has the Supreme Court made about the Voting Rights Act?
Voting rights advocates and election attorneys have called attention to several cases over the last decade that have limited the power of the Voting Rights Act, including:
Abbot v. Perez (2018) – Case concerning Texas redistricting; “The Supreme Court declined to strike down several Texas legislative and congressional districts on grounds of discrimination against Hispanic voters, in a blow to activists who want the courts to take a tough line against racial gerrymandering.”
Brnovich v. Democratic National Committee (2021) – Case concerning 2 Arizona provisions – an out of precinct policy and ballot collection policy; “Brnovich upholds both Arizona laws — a provision that disenfranchises voters for casting a ballot in the wrong precinct, and another that prevents most third parties from delivering another voter’s absentee ballot to a polling place.”
The Court isn’t necessarily consistent on VRA cases – many advocates celebrated a recent decision:
Allen v. Milligan (2023) – Case concerning racially discriminatory electoral maps in Alabama, “preserves longstanding safeguards against racism in US elections, strikes down a gerrymandered congressional map in Alabama, and all but assures that Democrats will gain at least one congressional seat in the next election from that state.”
Is federal protection for voting rights still necessary?
Yes – after the Shelby County decision we have seen a variety of difficulties and shifts that largely negatively affect black voters and other voters in communities of color.
Researchers and advocates have documented:
A growing racial turnout gap: Data gathered and analyzed by the Brennan Center for Justice from 2012 to 2022 shows that the racial turnout gap is growing almost twice as quickly in regions that used to be covered by Section 5 than in the rest of the country. While it’s important to note that many factors contribute to voter participation, the effect on racial turnout remains present in the Brennan Center study even when taking account for traditional drivers of voter participation
“In the 2022 elections, the white-Black turnout gap in formerly covered regions was 5 percentage points higher than it would have been had the Voting Rights Act remained in effect. This is the Shelby County effect — hundreds of thousands of voters of color now sit out elections in places where voter suppression has flourished.”
An uptick in legal actions taken against states: In the 2022 elections “Three states that were previously covered by preclearance requirements — Alabama, Georgia and Louisiana — have all seen their maps face significant challenges in federal court over whether or not they give Black voters adequate representation.”
A significant uptick in laws that make voting more difficult: Since the Shelby County Decision, at least 29 states have passed 94 restrictive voting laws. While a few of these have been blocked by courts or repealed, most are still in effect, and at least one continues to operate in each of the 29 states. Interactive map from the Brennan Center here
Restrictions take many forms, as Vox describes: “strict photo ID requirements, limitations on who can provide assistance at polling places, the curbing of early voting days, and the closing of hundreds of polling places across the US. Other measures, like the purging of voters from state voter rolls and drawing election districts in a way that curbs the power of voters of color, have affected how much power communities of color hold in elections.”
What is the future of the Voting Rights Act?
Since the Shelby County decision invalidated Section 4(b), Congress has not passed legislation that re-establishes a formula to determine which jurisdictions are subject to preclearance under Section 5. In recent, years, two prominent pieces of legislation have been introduced to amend the VRA and to expand voter registration and voting access:
John Lewis Voting Rights Advancement Act (VRAA)
The John Lewis Voting Rights Act was first introduced in the House in 2015 by Representative Terri Sewell (D-LA), as a direct response to the Shelby County Decision, and has since been reintroduced five times, most recently in 2024 on the 11th anniversary of the Shelby County decision
Under the VRAA, states that have had 15 or more voting rights violations occur within the past 25 years, or ten if at least one was committed by the state itself, would be required to acquire federal approval before enacting changes to election laws.
In addition to restoring preclearance, the Act as drafted would make Election Day a public holiday, limit the practice of removing voters from voter rolls, and expand voter registration and voting access
House lawmakers passed the bill along party lines in 2021, but it failed to advance in the Senate
It was most recently reintroduced in 2023 (in the House) and 2024 (in the Senate) during the current Congressional session, where it has been referred to committees of Jurisdiction
Freedom to Vote Act
Alongside the John Lewis Voting Rights Advancement Act, advocates have been calling for the Freedom to Vote Act. As the Brennan Center explains, “This landmark legislation sets baseline national standards to protect the freedom to vote, counter election denial, end partisan gerrymandering, and help get big money out of politics. It builds off momentum in states across the country to put in place pro-voter policies.” You can read a more comprehensive overview of the bills provisions here
Congress came close, but failed, to pass this package in 2022 when Democrats could not overcome a Republican filibuster
It was most recently reintroduced in the House and Senate in July 2023 during the current Congressional session, where it has been referred to committees of Jurisdiction
Other News We’re Reading
“… when you read between the lines there and you think about everything that’s happened with certification and the questions that came up in 2020 and since then, it seemed like a permissible window that could give local election officials the authority to say, I have doubts about this election... And we get into a situation where they could be running out the clock and missing very important deadlines that could create chaos, uncertainty, or move something to the courts.”
Nick Corasaniti on the New York Times podcast The Daily, discussing the unelected Georgia State Board of Elections and the groundwork to challenge a potential Harris victory
Chamberlain Chit Chat
What is our team reading/listening to/thinking about this week outside the democracy space:
Chris: September 1st is the start of the Halloween Season in the Purdy household. Thanks to a study in the Journal of Environmental Psychology, my front porch is not fitted with Jack Skellington, ghosts, and ceramic pumpkins. I will not be taking questions at this time.
Amie: Honestly, this is less of an obsession of this week rather than this week + month + year, but I cannot get enough of the Pikmin series on Switch. All I want to do to unwind these days is throw these little flower-capped creatures at various monsters and/or treats as they help me repair my rocket ship/pay off my bosses debt/get off the planet in time for x/y/z reason. I’ve played all four of the main series, but have been going back to Pikmin 2 recently (which is the hardest IMHO)!
Pete: As everyone knows, Fall starts on the Autumnal Equinox, which occurs on September 22nd or 23rd, except for about once every 1000 years, it will touch the 21st or 24th. This year will be September 22nd. So while the season may not kick off officially for another three weeks, like the Purdy household, it is officially decorative gourd season at Casa Lucier. Aldis had a bag of assorted loose white and orange pumpkins, and I cannot fill enough seasonal baskets and ceramic pumpkins with those cuties. Bring on sweaters, pumpkin spice lattes, and crisp autumn air. In prestige TV land, we bid farewell to Westeros, only to take a red eye direct flight to Middle Earth! Season 2 of Amazon’s Rings of Power premiered August 29th with a three show initial mini-binge drop. I’ll be delving too greedily and too deep this gorgeously rendered Patrick McKay and JD Payne exploration of the lead up to the Last Alliance of Men and Elves. I have three picks to click in Season 2: Charlie Vickers was outstanding as Halbrand in Season One and continues his strong performance in Episodes 1-3, now in his guise as Annatar, the Lord of Gifts. Pharazon in Numenor continues gaining power and influence as a populare demagogue on the Star Island of Numenor, while Disa, stone singer and wife of Prince Durin, continues to be force that can move and shake politics in Khazad-Dum. Can’t wait for episode 4.
That’s all for this installment! Tune in again soon as we continue to deep dive into our civic institutions.