Testimony Before the Subcommittee on the Constitution, Civil Rights and Civil Liberties, of the U.S. House Committee on the Judiciary: Congressional Authority to Protect Voting Rights After Shelby County v. Holder

Abstract

The Voting Rights Act has been widely hailed as one of the most successful pieces of civil rights legislation in the country’s history. It is our most significant shared national commitment to equal electoral participation and equitable political diversity, based in part on history that allows us to recognize that we all suffer when such a commitment is absent. In 2006, Congress voted overwhelmingly, and in bipartisan fashion, to reauthorize and update the Voting Rights Act. There had been undeniable and positive progress since 1965, but that progress existed in part due to the very protections that the Voting Rights Act offered, which were necessary to preserve equal opportunity. Those protections have since been degraded by the courts – particularly, but not exclusively, by Shelby County v. Holder. That same Court also issued Congress an express invitation to rectify the matter. The continued update of effective measures to prevent discrimination in the franchise are regrettably, and no less undeniably, necessary today. This testimony reviews the continuing need to restore the Voting Rights Act, explaining why election harms are distinct from other civil rights harms, and require distinct treatment. It analyzes the aftermath of the Shelby County decision, and the particular ways in which Shelby County, and a few follow-on cases in Texas, have left the electoral system dangerously vulnerable to discrimination. And it canvasses the legal authority delineating Congress’s constitutional ability to pass restorative legislation responding to this threat.