It is bizarre here to watch Rep. Adam Kinzinger (R-Ill.) argue that preclearance is outdated and unneeded. Moments after the Shelby decision scrapped the preclearance provision of the Voting Rights Act, draft bills restricting voting came out of drawers in Republican legislators’ desks in state capitols across the country, including, famously, in mine (N.C.).
In fact the Supreme Court left it to Congress to update the Voting Rights Act to speak “to current conditions,” which is just what the bills Kinzinger opposes attempt to do.
The Brennan Center addressed the issue last summer:
In Shelby County, a 5–4 majority invalidated that formula, ruling that it was too out-of-date. For nearly 50 years, the preclearance regime blocked discriminatory voting changes in several states — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia — and a number of localities elsewhere. Between 1998 and 2013 alone, Section 5 blocked 86 discriminatory changes, including 13 in the 18 months before Shelby County.
But even as the Supreme Court credited the VRA for improving conditions for voters of color, a majority decided that Section 4’s preclearance formula was no longer constitutional because “things have changed dramatically.” As Justice Ruth Bader Ginsburg pointed out in her dissent, however, it made no sense to get rid of a policy because it was working. She wrote presciently, “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
During the eight years since then, the rainstorm has grown into a torrential downpour. New voting restrictions, like stricter voter ID laws, have proliferated across the country. Voter purges — the removal of voters from the rolls — have surged in localities once covered by preclearance. The Brennan Center has calculated that if once-covered jurisdictions purged at the same rates as uncovered jurisdictions between 2012 and 2018, 3.1 million fewer voters would have been purged. Polling place closures in previously covered jurisdictions, along with fewer resources allocated in places that are becoming less white over time, has meant long wait-times to vote. And Brennan Center research shows that Black and Latino voters are more likely than white voters to experience the longest wait times on Election Day.
This year, we are seeing the most aggressive voter suppression effort since Jim Crow. To date, 17 states have enacted 28 laws that restrict voting access. Several of these laws have already been challenged in court. But preclearance could have stopped many of these policies in their tracks, without wasting the time and resources of our legal system or risking voter confusion.
In Shelby County, the Supreme Court left the ball squarely in Congress’s court, directing it to pass a renewed Voting Rights Act with a preclearance formula that “speaks to current conditions.” Congress is planning to do just that in the John Lewis Voting Rights Advancement Act. The bill — a new version of which is expected to be introduced later this year — will contain a revised coverage formula that looks at more modern issues of discrimination. It will also set forth certain discriminatory voting practices — like voter ID laws and polling place closures — that are subject to preclearance regardless of where the policies are implemented. And the bill has procedures for states or localities to show that preclearance doesn’t make sense for them anymore, among several other provisions.
“If we actually went into this as adults with real discussions, I think we can solve things,” says Kinzinger, complaining about Twitter comments and deriding how Democrats gave their voting bills catchy names to make them embarrassing to vote against like the Republicans did with their ‘‘Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001’.’
Great. Put your vote where your mouth is.