Passage of the John Lewis Voting Rights Advancement Act is the first step to heal our democracy
In his final words to our country, John Lewis told us that together we can redeem the soul of our nation. He also counseled that redemption is only delivered from the truth. The divisive battle over the legitimacy of the 2020 presidential election laid bare one such truth: Voter fraud is not the challenge that confronts our democracy. Rather, the challenge to America’s great experiment remains what it has been since our nation’s founding: pernicious efforts to silence the voices of racial and ethnic minorities at the ballot box, and their fight to be heard and their votes counted. These challenges to minority voting rights are enduring, persistent, and verifiable. To heal our democracy, lawmakers must begin with affirmative legislation that confronts this legacy problem of our republic. That bill is the John Lewis Voting Rights Advancement Act.
The 2020 voter fraud conspiracy, which alleged that the 2020 election was not legitimately won by President Biden, has rightfully been called “the big lie.” The truth is that the myth of voter fraud is an effective trope that has been used for decades to inhibit the political power of people of color. This recent effort to throw out ballots lawfully cast by Black, Latinx, and Indigenous voters in the 2020 election is in step with this history. We collectively witnessed how the voter fraud myth metastasized to try and swallow our democracy by preying on the growing political power of racial minorities.
The language used by officials who deny the legitimacy of the election mirrors efforts from the earlier half of the 20th century. “Illegal voting” or “illegitimate voters” is the same propaganda used by the adopters of poll taxes and literacy tests to disenfranchise Black voters during the Jim Crow era up through the Civil Rights Movement. It’s the chorus of officials today who continue to shamelessly advance measures to restrict access to voting for minority, elderly, and disabled voters.
Next year will be the first national redistricting cycle since the Supreme Court gutted Section 5 of the Voting Rights Act in 2013. Section 5 required state and local governments with records of voter discrimination to preclear voting changes with the Justice Department to ensure the changes were not racially discriminatory. For the first time since 1965, congressional, state, and local government legislative districts will be drawn without the key protections of the Voting Rights Act.
Our democracy is in dire need of stronger legal protections. Last year’s presidential election was the most litigated in our country’s history. At least 60 legal challenges were filed to invalidate lawfully cast ballots. These lawsuits had a single purpose: to disenfranchise qualified voters who voted against President Trump. Post-election lawsuits squarely targeted jurisdictions with the highest proportion of racial minority voters.
The courts — both federal and state, judges nominated by both Republicans and Democrats —unanimously rejected these challenges. On top of their baseless claims, the lawsuits sought extreme, anti-democratic outcomes and included motions to prohibit state officials from certifying election results, block presidential electors from casting their votes, or stop officials from counting ballots altogether. In decision after decision, judges cited either the flimsiness or total absence of evidence to support fraud allegations, irregularities, or malfeasance in the election process.
Despite this unanimous rejection by courts, states have already launched legislative reprisals against the historic turnout by voters of color. Georgia officials blatantly targeted minority voters this month with aggressive efforts to cut access to absentee voting, which has been available to all voters in the state since 2005 and which Black voters used in historic numbers in 2020 due to COVID-19. In Arizona, lawmakers introduced a spate of proposals to make it harder to vote.
For many of us on the frontlines of the voting rights fight, the absence of fraud evidence is entirely unsurprising. It’s consistent with our record of litigation challenging photo ID laws, cuts to early voting, voter registration restrictions, and voter purges, all of which were advanced in the name of preventing voter fraud — the singular pretext repeatedly used to justify the restrictions that disproportionately encumber voters of color.
The ACLU’s litigation experience after the Supreme Court gutted the Voting Rights Act’s protections reveals two things. Our record of success in blocking discriminatory voting changes shows that state and local officials continue to engage in a widespread and illegal pattern of racial discrimination. Second, the public lacks the tools to stop discriminatory voting law changes before they impact an election. Discriminatory laws that we ultimately succeeded in blocking remained in place for months or even years while our litigation proceeded — during which elections were held, and hundreds of government officials were elected.
The John Lewis Voting Advancement Rights Act will provide the public with the legal tools to block official acts of discrimination from infecting elections at the federal, state, and local levels. The bill does not seek to displace state or local voting procedures, so long as the procedures do not unconstitutionally infringe on the electorate’s right to vote free from discriminatory conditions.
Instead, it provides a framework of remedies and protection for voters who are at risk of racial discrimination by helping to root out unconstitutional voting procedures before they impede the voting process. It does this by restoring the preclearance regime that was gutted by the Supreme Court, ensuring public notice of voting changes, lowering the burden for obtaining a court order against problematic voting changes, and restoring the availability of neutral federal observers to ensure people can vote freely and fairly. The prophylactic approach adopted by this legislation is modeled after the original Voting Rights Act of 1965, which is broadly viewed as one of the most successful pieces of civil rights legislation precisely because it prevented unlawful voting procedures from going into effect in the first place.
Until recently, the Voting Rights Act’s protections have appealed to bipartisan sensibilities. For decades, the Supreme Court recognized that Congress acts at the apex of its constitutional power when legislating to preserve the most fundamental act in a free society: the right to vote. This is why the Voting Rights Act has enjoyed broad bipartisan support. Every reauthorization of the act’s provisions — in 1970, 1975, 1982, 1992, and 2006 — was signed into law by a Republican president.
In 2006, Congress reaffirmed its bipartisan support for protections for minority voters, passing the House with a vote of 390-33 and the Senate with a vote of 98-0. Many of those who voted in favor of the 2006 Voting Rights Act reauthorization continue to serve in Congress, including Sens. Marsha Blackburn (R-Tenn.), Roy Blunt (R-Mo.), John Boozman (R-Ark.), Richard Burr (R-N.C.), Shelley Moore Capito (R-W.Va.), John Cornyn (R-Texas), Lindsey Graham (R-S.C.), Charles Grassley (R-Iowa), James Inhofe (R-Okla.), Mitch McConnell (R-Ky.), Jerry Moran (R-Kan.), Richard Shelby (R-Ala.), John Thune (R-S.D.) and Roger Wicker (R-Miss.).
There can be no doubt that the need to safeguard minority voting rights is as dire today as it was in 2006. The insurrection at the U.S. Capitol on Jan. 6 showed the world that democracy is fragile, even in the United States, and we have to fight for it. All Americans have a shared interest in resuscitating the health of our democracy, and Congress has an opportunity to do just that by passing the John Lewis Voting Rights Advancement Act.
Sonia Gill is ACLU senior legislative counsel.