The Voting Rights Act (“Act”) was enacted in 1965, was revised about four times, and the last revision was made in 2006. The purpose of the Act is to ensure equal voting rights to all citizens of the U.S. In 2006, the Act was renewed for another twenty five years.
The brief history of the enactment is as follows. According to the 15th amendment of the U.S. constitution, a U.S. citizen’s right to vote shall not be denied or abridged by any state on the basis of race, color, or previous condition of servitude. Even after the ratification of the 15th amendment, the legislators of southern states where racial or minority discrimination was more prevalent, found other means to deny vote to the blacks. Even though the Supreme Court declared various provisions of the states as unconstitutional, certain states continued denying voting rights to the blacks and minority people by adopting new legislation. In 1964 various civil rights movements were organized to demand legislation that ensured voting rights to blacks. Through these demands and the then existing political environment, The Voting Rights Act was enacted in 1965.
Section 2 of the Act contains provisions on the prohibition on voting discrimination generally. The right granted under section 2 is permanent in nature. The right under section 2 can be enforced through federal courts. Accordingly, any voting procedure or practice that results in discrimination is prohibited. Proof of intentional discrimination is not required. What is considered is whether an electoral process is accessible to blacks and other minority voters.
Vote dilution claims in connection with gerrymandering or geographical division of election districts can be brought in connection with violation of Section 2 of the Act. If the reapportionment of election districts diminishes the voting strength of a protected class, an action brought claiming violation of right under Section 2 may succeed.
No state is permitted to require a prerequisite to voting or impose a procedure in a manner which results in a denial or an abridgement of the right to vote of any citizen of the U.S., on account of race or color[i].
A state may not use race as the basis for separating voters into districts. A reapportionment plan may violate equal protection principles when, it can be understood on its face, as an effort to segregate citizens into separate voting districts on the basis of race. Also, principles of equal protection are violated when a state has enacted a particular districting scheme purposefully to minimize or cancel the voting potential of racial or ethnic minorities. Thus, a state may not take an action which is disadvantageous or is intended to be disadvantageous to the voters of a particular race[ii].
Section 5 of the Act requires certain covered jurisdictions to obtain pre-clearance for making changes in the election law and changes in the venue. Pre-clearance is granted either by an administrative procedure of the U.S. Department of Justice or a declaratory judgment by a three judge panel of the U.S. District Court for the District of Columbia. The changes intended to be made with regard to any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting are to be pre-cleared. Pre-clearance is required where a non covered state effects voting changes in covered counties[iii]
An application for pre-clearance has to be decided within sixty days by the Department of Justice. On rejection of the request, a jurisdiction may continue the previous voting laws or may again adopt changes to the new law and request for its pre-clearance.
In order to get pre-clearance, the covered jurisdiction must prove that a proposed voting change will not have the effect of discriminating based on race or color. They must also show that the proposed change does not discriminate against a language minority group. Burden of proof to show that there is no purpose of discrimination is on the state which proposes the change in the law.
The states which had less than fifty percent voting during the time of enactment are covered under the 1965 Act. Some counties and towns which act in violation of section 2 of the Act are also brought under covered jurisdiction. But, some counties have bailed out from getting pre-clearance to make changes.
Section 5 has been interpreted by some judges as requiring racial gerrymandering of the states in order to ensure minority representation.
The Act requires municipalities that receive requests for ballots in other languages to comply with the request.
[i] 42 USCS § 1973.
[ii] Page v. Bartels,144 F. Supp. 2d 346, 2001 U.S. Dist. LEXIS 6016 (D.N.J., May 4, 2001, Decided ).
[iii] Lopez v. Monterey County, 525 U.S. 266 (U.S. 1999).