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Adrianna Northrop

Professor Overby

Political Science 4170

21 November 2019

A Proposed Future and Implications of the Voting Rights Act of 1965

The Voting Rights Act of 1965, an act meant initially to be temporary in the wake of

exceptional times, has persisted into the modern era surrounded by controversy. Namely, the

Supreme Court case, Shelby County v. Holder of 2013 drew attention to injustices invoked by the

Voting Rights Act on states in the American South and effectively ended the enforcing

mechanism. States covered by the Voting Rights Act were subject to the trigger of preclearance

that required permission for any changes to their voting process procedure. Due to under-

discussed deficiencies in northern cities, political representation issues for racial minority

groups, and current events resulting in vote dilution, the Voting Rights Act should replace the

forgone trigger mechanism. A coverage formula emphasizing, among other attributes, current

events and equality between states should serve as this replacement.

Before exploring the reinstatement of a trigger mechanism in the Voting Rights Act

(VRA), it is important to explain what the mechanism originally entailed. Outlined in Title 4 of

the VRA, states that had literary devices in place in 1964 and states with less than 50 percent

voter participation in 1972 would have to abide by Title 5 of the VRA. These two characteristics,

if met, acted as the aforementioned trigger mechanism. This was initially called into question in

2009 when NAMUNDO, the Northwest Austin Utility District Number One, began to question

why their district was subject to preclearance under the VRA. They brought their concerns to the

Supreme Court and questioned this on both statutory and constitutional grounds. Statutorily,
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NAMUNDO had been unable to petition for bail-out since their district was so small.

Constitutionally, they disputed the need for their coverage under the VRA at all. The court ruled

in favor of bailouts but failed to address the question of constitutionality. The case of Shelby

County v. Holder finally brought attention to NAMUNDO’s question of constitutionality. The

case ruled that the trigger mechanism was unconstitutional due to violations of equal sovereignty

but did not replace the trigger mechanism. Today, the VRA continues to exist without a trigger

mechanism.

While it is clear that the original trigger mechanism violated the Constitution, pressing

current issues demand a new mechanism be initiated. Regarding the debate about the trigger

mechanism, Chief Justice Roberts asked, “Is the sovereignty of Georgia entitled to less respect

than the sovereign dignity of Ohio?” (Brunell, Manzo; 2). As of 2012, Massachusetts has the

lowest black to white voter turnout, while Mississippi has the highest (Bullock, Gaddie, Wert;

176). This corroborates the idea that a trigger mechanism targeting only the South would be

unconstitutional and appalling. This brings attention to a crucial problem – some northern cities

currently require assistance in increasing their participation. Elections in many areas, especially

those outside of covered states, yield low voting participation. Charlie Norwood fronted the idea

that states currently using discriminatory devices and having less than 50 percent voter

participation in the last three elections would be subject to preclearance (Bullock, Gaddie, Wert;

173). Under this rule, many states and counties both inside and outside the South would be

subject to preclearance. For example, in 2012, states such as New York and California failed to

yield 50 percent of their voting-eligible population (Bullock, Gaddie, Wert; 175). Low voter

turnout had never been addressed under the previous trigger mechanism, but these statistics

suggest change is necessary to remedy this issue for the nation as a whole.
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Today, many minority groups struggle to turn out to vote. Black voter turnout has

increased significantly throughout the country, but other minorities, such as Hispanics and Asian

Americans, suffer staggeringly low turnout rates. While black voting rates in previously covered

states have soared above the nation’s average, the same cannot be said for other groups.

Nonwhite citizens in states such as Colorado and Wyoming turn out at significantly lower rates

than their white counterparts to vote (Bullock, Gaddie, Wert; 179). Subsequently, minorities are

not adequately represented in the legislature. As of 2019, Congress is still only 22 percent

minorities, despite a 39 percent non-white population in the country (Bialik, 2019). Proper

representation, as discussed in The Rise and Fall of the Voting Rights Act, is shown to be a racial

issue. Black members of Congress were found to be more likely than their white counterparts to

push through legislation focused on race (Bullock, Gaddie, Wert; 190). Southern legislatures

have been dominated by Republicans, a party largely composed of whites that do not focus on

racial equality, since 2014 (Bullock, Gaddie, Wert; 194). This is problematic since these states

also hold some of the nation’s most highly concentrated minority populations. These issues

warrant federal intervention to ensure all races are represented in equivalence to the population,

and a trigger mechanism will help promote this culture. Even though the issue of minority

representation has improved dramatically since 1965, it is important to safeguard these advances

and keep policy in place that ensures the right to vote from the 15th Amendment.

Additionally, the trigger mechanism holds states accountable for their voting

participation rates in 1972. Chief Justice Roberts comments on this aspect saying, “Today the

nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if

it were” (Bullock, Gaddie, Wert; 172). The trigger language was last updated in 1975 – a near

generation ago. This being said, it is fair to assume that if a new trigger were to be instated, it
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must be sure to concentrate on current issues rather than past issues. When the VRA was

established in 1965, the South was the primary location for racial discrimination and voting

disfranchisement. Today, this is not the case, as many issues span throughout the entire country.

Among these current issues is discrimination in political settings. This is evidenced by racially

polarized voting. Racially polarized voting is the concept that white voters may vote against

candidates simply because they are favored by minority voters. Today’s question is whether this

is racially motivated or simply motivated by different policy interests (Bullock, Gaddie, Wert;

189). Another current issue in the voting process involves proof of identification. In the majority

of states, a state-issued photo identification (ID) is required for voting registration. This is an

issue for many minority groups, namely blacks and Hispanics, who are generally less wealthy

and, more often than whites, struggle to obtain a formal form of identification (Bullock, Gaddie,

Wert; 200). A Voter ID law in Texas had been struck down in 2012 on the basis of

discrimination against lower-income citizens that were often racial minorities (Brunell, Manzo;

8). Obtaining an ID also requires the individual to have their birth certificate (or another form of

official identification) and the means to travel to get the ID. Copies of birth certificates and

transportation both cost money that lower-income households may not have. In some ways, this

is a form of vote dilution since it effectively diminishes minority vote potential. Vote dilution is

also an issue in Republican efforts at gerrymandering districts in order to create Majority

Minority Districts (MMDs). These MMDs would pool minority representatives into few districts

rather than allowing them to have some form of representation in many districts. This causes a

lack of consistent backing for minority interests throughout a given state, thus contributing to the

vote dilution.
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An effective new trigger mechanism would target all states with low percentages of

minority voting. This would solve the violation of equal sovereignty and unconstitutionality. The

archaic method of simply targeting the American South due to their discriminatory history is

unjust and useless in the face of modern discrimination. I would recommend a coverage formula

that concentrates on minority voting relative to the voting-eligible population all over the nation

– not just in the South. Minority voting should be defined as “racial minorities” in order to

preserve the original intent of the VRA, to uphold the 15th Amendment. “Racial minorities,” in

this case, should also span to include language minorities defined in the 1975 renewal of the

VRA such as Hispanics and Asian Americans. By concentrating on racial minority voting rather

than overall voting, this new trigger mechanism would target the overall objective of equalizing

voting participation. Unlike the previous coverage formula, this would ensure that all states are

treated equally and that equal efforts are put forth throughout the nation to strengthen voting for

all under-represented groups. Another issue with the previous trigger was its temporary nature.

Similar to Charlie Norwood’s proposal, I recommend a new trigger that automatically updates

based on participation in recent elections - keeping current events as the determining factor of

preclearance. Automatic updates should occur every other midterm election in order to ensure

offices below the presidential level, where corruption is increasingly more common, are taken

into account. This would ensure that only relevant events are taken into account. Furthermore, an

ideal trigger mechanism must be able to pick out localities rather than simply covering large

areas that may not need coverage. Bernard Grofman highlighted this issue to avoid over-

coverage and forcing non-discriminatory areas into preclearance (Bullock, Gaddie, Wert; 183).

In addition, I would implement a system requiring all jurisdictions to give public notice of any

changes to the voting process. Similar to a provision in The Sensenbrenner-Conyers-Leahy

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Trigger, this system would ensure that the voting population is well informed and able to

challenge any voting injustices (Bullock, Gaddie, Wert; 184). This new trigger mechanism,

including each of the prior listed components, would activate Title 5 of the VRA.

Ultimately, both logic and statistics depict the prior trigger mechanism under the Voting

Rights Act to be unconstitutional and extraordinarily unfair. While this fact was settled in Shelby

County v. Holder, the problem remains that many minority groups are under-represented at the

polls. The previously mentioned injustices, indisputably, are significant enough that federal

intervention in the form of a new trigger mechanism is necessary.

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Bibliography

Bialik, Kristen. “For the Fifth Time in a Row, the New Congress Is the Most Racially and

Ethnically Diverse Ever.” Pew Research Center, 8 Feb. 2019,

https://www.pewresearch.org/fact-tank/2019/02/08/for-the-fifth-time-in-a-row-the-new-

congress-is-the-most-racially-and-ethnically-diverse-ever/.

Brunell, Thomas L., and Whitney Ross Manzo. “The Voting Rights Act After Shelby County v.

Holder: A Potential Fix....” Transatlantica. Association Française D’études

Américaines (AFEA), 8 Apr. https://journals.openedition.org/transatlantica/7429.

Bullock, Charles S., Gaddie, Ronald Keith, Wert, Justin J., The Rise and Fall of the Voting

Rights Act. Vol. 2, University of Oklahoma Press: Norman, 2016.

Overby, Leroy Marvin. Nov. 2019, University of Missouri, Lecture.