The VRA would become the most effective civil rights law in our country’s history. Just a decade after its implementation, the gap between black and white registration shrank from 30 to 8 percentage points, while the 50 percentage point gap between black-white turnout in the South in the 1950s was nearly erased.
The most important mechanism for achieving this victory was Section 5 of the VRA, the preclearance provision. Section 5 prohibited some states and localities from changing electoral procedures without the approval of the Justice Department or a federal court. This policy was put into place to prevent states with a history of discriminatory practices from enacting laws preventing people of color from voting. Section 5 has been renewed by bipartisan majorities four times since its passage in 1965, most recently in 2006 for a period of 25 years.
In 2013, the Supreme Court gutted the VRA’s preclearance provision in Shelby County v. Holder. Ignoring repeated congressional reauthorizations, the court effectively ended oversight over potentially racially discriminatory electoral practices by striking down the rules that determined which states were subject to preclearance. In the majority opinion, Chief Justice John G. Roberts Jr. wrote that although there is no doubt that voting discrimination still exists, the times have changed and the previous formula had lost its relevance. Because the court did not eliminate the preclearance requirement itself, it left Congress the opportunity to draft new rules to determine which jurisdictions should be subject to preclearance.
Congress tried to act: In 2014, immediately after the Shelby decision, a bipartisan group of legislators introduced the Voting Rights Amendment Act, which finally passed the House, but it remains bottled up in the Senate.
In the face of crippling federal inaction, we can and must act here in Virginia.
We can re-create the protections of preclearance at the state level and prevent localities from engaging in discriminatory and damaging practices by passing the Virginia Voting Rights Act. This act will require localities to submit to the attorney general for approval certain election changes, such as relocating polling places.
This is not a small problem: From 2010 to 2013, the last three years of federal preclearance, Virginia localities made more than 1,300 significant changes to voting methods, procedures, district lines and precincts — all of which required preclearance for discriminatory impact before they could go into effect. Unfortunately, no master list of changes since 2013 exists. But with no reason to worry about checking against the VRA standards, all evidence points to an acceleration of such discriminatory changes.
Other states show that if Virginia doesn’t act, this could get worse. Since Shelby, 1,688 polling locations have been closed in places previously under preclearance. In Georgia, roughly 8 percent of all polling locations in the state were closed, disproportionately in minority communities. That is exactly what preclearance was created to prevent. Without an effective preclearance provision, many states and localities are reverting to pre-VRA voting practices aimed at disenfranchising nonwhite voters. We can’t let that happen in Virginia.
My Virginia Voting Rights Act will help Virginia take the lead on ensuring fair access to the polls by creating a state-level preclearance mechanism. Making sure Virginians have the right to vote isn’t enough; we must also ensure localities do not act in a way that would deny them the rights we seek to expand.
In her Shelby dissent, Justice Ruth Bader Ginsburg wrote, “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.” We are getting wet, and the storm is getting worse.
Virginia, the birthplace of democracy, has a chance to take action this year and become a leader in restoring and amplifying a foundation of democracy: the right of all citizens to vote at the ballot box.