Voting Rights: Federal Protections and Recent Legal Challenges

The Voting Rights Act of 1965 was enacted during the civil rights movement to overcome the systematic denial of voting rights to racial minorities, particularly African Americans in the South. The Act's most potent provision was Section 5, which required jurisdictions with a history of voting discrimination to obtain federal approval (preclearance) before implementing any changes to voting laws or procedures. Section 2 provides a nationwide prohibition on voting practices that result in the denial or abridgement of the right to vote on account of race, color, or membership in a language minority group.

The VRA was reauthorized and amended multiple times, most recently in 2006 for 25 years. In Shelby County v. Holder, the Supreme Court held that the coverage formula used to determine which jurisdictions were subject to preclearance was unconstitutional because it was based on decades-old data and no longer reflected current conditions. This decision effectively suspended Section 5 preclearance, as no jurisdiction is currently covered absent a new coverage formula enacted by Congress.

Section 2 of the VRA, which applies nationwide, prohibits voting practices that result in discrimination. Following the Supreme Court's decision in Brnovich v. DNC (2021), courts evaluate Section 2 claims by considering the totality of circumstances, with the Court identifying several guideposts including the size of any burden on voting, the degree to which a challenged practice departs from what was standard in 1982, the size of any disparities in impact, and the availability of other opportunities to vote. These guideposts have generally made it more difficult for plaintiffs to prevail in Section 2 challenges.

The Help America Vote Act of 2002 established minimum standards for voting systems, provisional voting, and statewide voter registration databases, administered by the Election Assistance Commission. The National Voter Registration Act requires states to offer voter registration through motor vehicle agencies and by mail, and establishes standards for voter roll maintenance. The Uniformed and Overseas Citizens Absentee Voting Act ensures voting access for military and overseas voters.

Congressional options include enacting a new preclearance coverage formula to restore Section 5 protections, establishing national standards for early voting, mail-in voting, and same-day voter registration, prohibiting certain practices such as partisan voter roll purges and polling place closures that disproportionately affect minority voters, and mandating automatic voter registration through federal agencies.

The John R. Lewis Voting Rights Advancement Act, which would establish a new coverage formula based on recent voting rights violations, has passed the House but not the Senate. Other proposals include the Freedom to Vote Act, which would establish national minimum standards for federal elections, require paper ballot records, establish Election Day as a federal holiday, and address campaign finance and redistricting. Opponents argue that these proposals would federalize elections in violation of the constitutional principle that states administer elections, and that existing protections are adequate.

State-level voting law changes continue at a rapid pace, with over 30 states enacting restrictive or expansive voting laws since 2020. Litigation under Section 2 of the VRA continues, with federal courts applying the Brnovich framework in challenges to voter identification laws, early voting reductions, and other restrictions. The Supreme Court's decision in Allen v. Milligan (2023) reaffirmed the applicability of Section 2 to redistricting cases. Congressional debate over voting rights legislation has been closely tied to broader questions about filibuster reform, with proponents arguing that protecting voting rights warrants a carve-out from the 60-vote threshold.