Voting Rights Act: Brief Policy Overview

Voting Rights Act: Brief Policy Overview

link to page 2

December 14, 2022
Voting Rights Act: Brief Policy Overview
The Voting Rights Act (VRA) protects equal access to
oral arguments in an Alabama redistricting case (Merrill v.
elections for all eligible Americans. In particular, in
Milligan) brought under §2 of the VRA.
response to widespread disenfranchisement between the
post-Civil War period and the 1960s, the VRA protects
Much of the legislative activity concerning the VRA post-
voters in racial and language minority groups. The U.S.
Shelby County has concerned whether or how to establish a
Department of Justice (DOJ) enforces the act. The statute
new coverage formula to replace the current §4(b)
also provides a private right of action for individuals. This
preclearance language that the Court invalidated. The
CRS In Focus provides a brief overview of the VRA and
“Recent Legislative Activity” section below provides
policy issues the statute addresses. Several other CRS
additional information.
products, some of which are listed at the end of this In
Focus, provide additional information (including legal
Major VRA Provisions and Sections
analysis not addressed in this product) about the VRA and
The VRA and its amendments contain several sections,
related subjects.
some of which are beyond the scope of this CRS product.
Those highlighted below are particularly noteworthy.
Congressional Context
Legislative and policy discussions of the VRA typically
The VRA is the primary statute Congress has enacted to
refer to major section numbers of the act.
enforce the Fifteenth Amendment to the U.S. Constitution
(prohibiting denial or abridgement of citizen voting rights
Section 2: Nationwide Prohibitions
based on “race, color, or previous condition of servitude”).
Section 2 (52 U.S.C. §10301) prohibits states from using
Since enacting the VRA in 1965, Congress has regularly
any “standard, practice, or procedure” to abridge or deny
considered legislation to amend the act. Congress extended
voting rights based on race, color, or membership in a
and amended VRA provisions five times after initial
language minority group. Section 2 is often the basis for
enactment—in 1970, 1975, 1982, 1992, and 2006. In each
enforcement claims against individual election jurisdictions
instance, amendments received wide bipartisan and
(e.g., states or counties).
bicameral support. President Lyndon Johnson signed the
initial act; Presidents Ford, Reagan, George H. W. Bush,
Discriminatory intent or effect can be sufficient to establish
and George W. Bush signed amendments.
a Section 2 violation. In the 1982 VRA amendments,
Congress specified that a Section 2 violation is “established
The House and Senate Judiciary Committees have primary
if, based on the totality of the circumstances, it is shown
jurisdiction over the VRA. In addition, the Committee on
that the political processes leading to nomination or election
House Administration and the Senate Rules and
in the State or political subdivision are not equally open to
Administration Committee have primary jurisdiction over
participation” by voters protected under the act, and that
federal elections issues and frequently hold oversight or
members of the protected class (group) “have less
legislative hearings that address the VRA or related issues.
opportunity than other members of the electorate to
participate in the political process and to elect
Recent Congresses have appropriated VRA enforcement
representatives of their choice” (52 U.S.C. §10301(b)).
funds to DOJ through Commerce Justice Science (CJS)
appropriations bills or omnibus measures. Report language
Traditionally, this statutory language has been particularly
(H.Rept. 117-395) accompanying FY2023 House CJS bill
important in redistricting challenges, such as to boundaries
H.R. 8256 directed that a “significant amount” of DOJ Civil
that allegedly weaken racial or language minority political
Rights Division increased funding go toward VRA
influence, or overwhelm those groups’ voting power
enforcement.
through at-large elections. Such challenges are generally
considered “vote dilution” claims. By contrast, more recent
Litigation, which is beyond the scope of this product,
“vote denial” claims have concerned state election
provides important context for some VRA policy issues and
administration practices, voting laws, or both. In particular,
has spurred congressional oversight, legislation, or both. In
the 2021 Brnovich decision concerned Arizona provisions
2021 (Brnovich v. Democratic National Committee), the
regulating ballots cast outside of a voter’s precinct, and a
U.S. Supreme Court identified “guideposts” that federal
state law regulating ballot collection. CRS products cited
courts should consider when examining certain claims
below contain additional detail.
brought under §2 of the VRA. The Court’s 2013 Shelby
County v. Holder ruling invalidated VRA provisions that
Section 3: “Bail In” Provisions
established a coverage formula that triggered a process
Section 3 of the VRA (52 U.S.C. §10302) authorizes
known as “preclearance.” In October 2022, the Court heard
federal court intervention to ensure that election
jurisdictions do not use a prohibited “test or device” to
https://crsreports.congress.gov

Voting Rights Act: Brief Policy Overview
abridge or deny voting rights. Judicial oversight may last as
Section 203 applies to jurisdictions that have a single
long as the court deems necessary.
language-minority group whose members are of limited
English proficiency and which meet certain statistical
Sections 4 and 5: Preclearance
thresholds established under the act. Similar requirements
Before Shelby County, Sections 4 and 5 of the VRA worked
apply to election jurisdictions that include American Indian
together to establish preclearance requirements and related
or Alaska Native lands. The Census Bureau makes
prohibitions for specific jurisdictions. VRA preclearance
coverage determinations which, under the act, are not
provisions are currently inoperable, but remain relevant for
subject to judicial review. The bureau’s 2021
historical reference and as Congress has considered
determinations applied to 331 election jurisdictions (mostly
potential future amendments.
counties and municipalities) around the country.
Under the coverage formula in VRA Section 4(b) (52
Recent Legislative Activity
U.S.C. §10303(b)), preclearance applied to jurisdictions
Most VRA legislative activity during the 117th Congress
that maintained prohibited tests or devices and in which,
has involved four bills that are variations of the Freedom to
initially based on 1964 presidential election data: (1) less
Vote Act and the John R. Lewis Voting Rights
than 50% of the voting-age population (VAP) was
Advancement Act (VRAA). Other bills not addressed here
registered to vote, or (2) less than 50% of the VAP voted.
have also received some committee consideration.
Prohibited tests or devices include “any requirement” for
registration or voting demonstrating literacy, educational
 The House passed H.R. 4, the initial version of the
achievement, good moral character, or in which other voters
VRAA, in August 2021. Among other provisions, the
had to vouch for the voter’s identity (52 U.S.C. §10303(c)).
bill proposes what some have called a “rolling”
Practically speaking, this provision was aimed primarily at
coverage formula that could apply to jurisdictions
methods such as literacy tests that had been widely used to
around the country. The Senate did not invoke cloture
disenfranchise Black voters.
on the motion to proceed to its companion bill, S. 4, in
November 2021.
When initially enacted in 1965, the coverage formula
 Separately, also during fall 2021, the Senate considered,
applied to all of Alabama, Georgia, Louisiana, Mississippi,
but did not invoke cloture on, the motion to proceed to
South Carolina, and Virginia, and much of North Carolina.
the Freedom to Vote Act, S. 2747. That bill primarily
Congress extended coverage, after initial enactment, to
concerns other elections, voting, and campaign finance
include 1968-1972 presidential election data. Under these
matters, and also includes some amendments to the
amendments, preclearance extended beyond the South. For
VRA language minority provisions.
example, all of Alaska, Arizona, and Texas were covered
by 1975. Other covered areas included parts of Hawaii,
 In January 2022, the House approved the Freedom to
Idaho, and New York. Some of these jurisdictions later
Vote: John R. Lewis Act and sent it to the Senate in the
“bailed out” of preclearance under separate provisions in
form of an amendment between the houses on unrelated
the act. In 2013, Shelby County invalidated preclearance
bill H.R. 5746. The Senate did not agree to a cloture
still in effect for Alabama, Alaska, Arizona, Georgia,
motion on the text. The legislation combines elements of
Louisiana, Mississippi, South Carolina, Texas, and
some of the bills noted above and addresses aspects of
Virginia, and parts of California, Florida, Michigan, New
campaign finance, election administration, and voting
York, North Carolina, and South Dakota.
rights.
VRA Section 5 (52 U.S.C. §10304) required any
Related CRS Products
jurisdiction that triggered the Section 4(b) coverage formula
Several other CRS products address issues related to the
to receive approval from the U.S. Attorney General or the
VRA. Among others, these include the following:
U.S. District Court for the District of Columbia before
changing any voting standard, practice, procedure, or
CRS Report R45302, Federal Role in U.S. Campaigns and
qualification. In practice, this preclearance process delayed
Elections: An Overview, by R. Sam Garrett;
or prohibited covered jurisdictions from instituting a wide
range of election changes from, for example, altering
CRS Insight IN11618, Congressional Redistricting Criteria
polling place hours to implementing proposed redistricting
and Considerations, by Sarah J. Eckman;
plans.
CRS Testimony TE10033, History and Enforcement of the
Section 203: Language Minority Provisions
Voting Rights Act of 1965, by L. Paige Whitaker;
In 1975, Congress amended the VRA to include, among
CRS Legal Sidebar LSB10624, Voting Rights Act: Supreme
other provisions, voting protections for certain voters with
Court Provides “Guideposts” for Determining Violations of
limited English proficiency. Section 203 of the act requires
Section 2 in Brnovich v. DNC, by L. Paige Whitaker; and
some jurisdictions to provide voting materials and other
language assistance to “persons who are American Indian,
CRS Legal Sidebar LSB10771, Voting Rights Act: Section
Asian American, Alaska Natives, or of Spanish heritage”
3(c) “Bail-In” Provision, by L. Paige Whitaker.
(52 U.S.C. §10503(e)) and whose ability to speak or
understand English limits electoral participation.
R. Sam Garrett, Specialist in American National
Government
IF12284
https://crsreports.congress.gov

Voting Rights Act: Brief Policy Overview

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to
congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress.
Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has
been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the
United States Government, are not subject to copyright protection in the United States. Any CRS Report may be
reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include
copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you
wish to copy or otherwise use copyrighted material.

https://crsreports.congress.gov | IF12284 · VERSION 1 · NEW