The Voting Rights Act of 1965 is widely hailed as the crown jewel of the civil rights movement, the most effective civil rights statute in history. It would be hard to overstate the importance of the Act in American political life. Its impact on the political culture of the South was immediate and decisive, a culture that had grown accustomed to under-enforcing the voting rights of its African-American citizenry.
As the U.S. Congress debates whether to reauthorize this historic piece of legislation, I fear that this will be a missed opportunity. One way to think about this debate is to ask whether Congress should reauthorize the Act at all. Put another way: is the Act still necessary?
In order to understand this question, we must be clear on what provisions of the Act are subject to debate. Three particular provisions deserve close scrutiny:
- Under its coverage formula, the Act targets those areas of the country with a history of racial or language discrimination, primarily — though not exclusively — in the South. These are known as covered jurisdictions. This formula has been extended in 1970, 1975 and 1982.
- Once covered, a jurisdiction must receive approval from federal officials for basically any changes in their voting laws. In other words, these laws would be presumed illegal unless the jurisdictions could show federal actors that the laws comport with the requirements of the Act.
- Under Section 203, enacted in 1975 and reauthorized in 1982 and 1992, jurisdictions that fall under the bilingual formula must provide bilingual ballots and assistance to voters.
I remain deeply ambivalent about reauthorization. On the one hand, I agree with those who advocate for extension of the Act into the future. As documented by the American Civil Liberty Union’s Voting Rights Project, the University of Michigan Voting Rights Initiative, the National Commission on the Voting Rights Act and reports from many of the states covered under the Act, racial discrimination in voting is alive and well. While the problem is clearly not what it used to be, our political culture has not matured to the point where we can begin to envision life without the special provisions of the Act. Also, reauthorization offers a clear symbol of our strong commitment to voters of color.
On the other hand, I fear that passage of the Act will give us a false sense of complacency, as if all is well with the republic and our voting rights are secure. Reauthorization of the Act makes for great theater — after all, who could be against the Voting Rights Act? In the meantime, myriad problems remain largely unaddressed. One issue is particularly close to my heart, the problem of Latinos and voting. The Act helps in some respects, by affording bilingual ballots in certain qualifying jurisdictions. But this is only a small step. For example, Latinos lag far behind Whites and African-Americans in terms of voter registration, voter eligibility and voter turnout. Also, American citizens residing in the commonwealth of Puerto Rico do not have direct voting representation in Congress or the Electoral College. These are issues that the Act does not address.
The Act also does not address, among others, the gap between elected officials of color and eligible voters; felon disenfranchisement laws; the enactment of voter id laws across the nation; and what might be the elephant in the room, the problem of political gerrymandering and the dearth of competitive congressional seats across the country.
These arguments are not intended as criticisms of one of the most important civil rights statutes in history. Far from it. My point instead is that reauthorization of the Act should not be taken as a complete victory and the end of the fight for real voting rights for all. Much hard work remains to be done.
— Luis Fuentes-Rohwer is an Associate Professor of Law at Indiana University.
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