Voting Rights Act’s Extraordinary Remedy Requires Modern Application

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For decades, the Voting Rights Act has prevented changes to election laws in certain states and jurisdictions until those changes have either been approved by the Department of Justice or upheld in a lawsuit before the United States District Court of the District of Columbia.

On Tuesday, the United States Supreme Court struck down the formula under the Voting Rights Act of 1965 which is used to determine which states and jurisdictions are subject to the Act’s pre-clearance requirements. The Court’s ruling leaves intact the vast majority of the Voting Rights Act, including provisions permitting the federal government to challenge racially discriminatory laws.

According to the Court, Congress “employed extraordinary measures to address an extraordinary problem,” when the Voting Rights Act was first enacted. Intentional voter disenfranchisement was so pervasive in the covered jurisdictions that anti-discrimination laws were insufficient to correct the problems. As such, Congress targeted those jurisdictions by effectively removing their ability to craft voting laws without federal oversight.

The formula used by the Voting Rights Act to determine which states received this treatment hinged on whether “those States or political subdivisions that had maintained a test or device as a prerequisite to voting as of November 1, 1964, and had less than 50 percent voter registration or turnout in the 1964 Presidential election.”

While the criteria have slightly expanded over the past half century, the fundamental components have not. The formula for covering states like Alabama and Virginia while leaving states like Ohio and Tennessee uncovered by section 5 was essentially frozen in 1964.

The Constitution recognizes a wide range of powers held by the states under the Tenth Amendment; among those is the power to regulate their elections. The Supreme Court’s decision recognizes that Congress must develop a much more flexible and narrowly tailored formula for imposing its will on that power and discriminating between the states.

Consider for a moment if Congress simply removed references to 1964 from the initial formula for determining section 4 coverage. States would be judged based on whether they maintain a test or device as a prerequisite to voting or whether they had less than 50 percent voter registration in the last presidential election.

Under that criterion, Alabama, Georgia, Louisiana, Mississippi, South Carolina and Virginia, all of the originally covered states, would not be targeted by the Voting Rights Act, based on 2012 voting data.


As we continue to ensure that our election laws are free from discrimination, Congress and the President have an obligation to ensure that any solutions take advances in attitudes and social norms over the last 50 years into account.

Most Americans might be surprised to find that Alabama has a higher percentage of African-American citizens registered to vote than California, Connecticut, Minnesota, Nevada and several other non-covered states. The evidence of change becomes even stronger when it comes to the percentage of citizens who actually voted in the last presidential election in Alabama: 63.1 percent of blacks as opposed to 61.2 percent of whites.

While attitudes and social norms have changed considerably since the 1960s, there should be no doubt that racist attitudes exist across America. Those perspectives must not be given quarter at any level of government. Even so, we should be proud that our country has changed. We have made progress. As we continue to ensure that our election laws are free from discrimination, Congress and the President have an obligation to ensure that any solutions take those advances into account.

Most importantly, the Court’s decision gives the residents of targeted states like Alabama a tremendous opportunity to prove their detractors wrong by fighting remaining vestiges of racism…without the heavy hand of the federal government.


Cameron Smith is policy director and general counsel for the Alabama Policy Institute, an independent, non-profit research and education organization dedicated to the preservation of free markets, limited government and strong families. If you would like to speak with the author, he may be reached 205.870.9900, at camerons@alabamapolicy.org or on Twitter @DCameronSmith.

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