The federal government's repeated failure to enact stronger voting rights protections means states must take a more proactive role in passing laws that protect the freedom to vote for all Americans.
This issue is particularly important given the weakening of federal voting rights laws by the U.S. Supreme Court, and the proliferation of anti-voter laws at the state level that disproportionately affect Black, Hispanic, Asian and Native American voters.
What’s a long-lasting, far-reaching action that state legislatures can take to protect the rights of voters in their states long after their terms are up? Pass a state Voting Rights Act (state VRA).
State Voting Rights Acts have been passed in eight states so far: California, New York, Oregon, Virginia, Connecticut, Washington, Minnesota and Colorado. These laws are, in effect, a response to the limitations of and setbacks suffered by the federal Voting Rights Act (federal VRA) since it was passed in 1965.
The federal VRA prohibits racial discrimination in voting and allows communities of color to challenge discriminatory voting laws, policies and redistricting maps in court. It used to require states and localities with long histories of discrimination to first get any changes to their elections approved — in a process called “preclearance” — by the Department of Justice or a federal court.
In 2013, the Supreme Court invalidated the part of the law that imposed preclearance on places with a history of discrimination and, while the federal VRA still empowers voters to take state and local governments to court to enforce their rights, it is extremely challenging for voters to prevail. Voters must overcome significant hurdles just to prove voting maps and systems discriminate against them.
As an initial matter, voters challenging maps and voting systems must prove that they are residentially segregated and that white voters usually vote as a block to prevent their preferred candidates from being elected. That's before they're even allowed to proceed to a trial, where they'll still have to prove that those maps or systems violate the federal VRA.
Even if voters can overcome these hurdles and win their lawsuits, courts generally defer to the solutions proposed by local governments — the very governments that implemented discriminatory voting systems in the first place.
These lawsuits are incredibly costly and time-consuming; however, because the states and localities most likely to racially discriminate against voters are no longer required to preclear any changes to their elections with the Department of Justice, these lawsuits are the only way to apply the federal VRA to protect the rights of historically marginalized groups of voters.
State lawmakers can change all of this by passing state VRAs. These laws can help reduce the burden on communities of color by making it easier to prove that a map or voting system is racially discriminatory.
State VRAs can also be used to instruct courts to consider a variety of possible solutions and to prioritize community input instead of the solutions proposed by self-interested politicians.
State VRAs can reduce the need for lawsuits altogether by demanding that voters and local governments work together to fix discriminatory election systems before resorting to legal battles. Or, better yet, they can prevent those discriminatory election systems from being implemented in the first place by requiring local governments with a history of discrimination to get state court approval for changes they want to make to their elections, similar to the preclearance process.
State VRAs allow states to go above and beyond the floor set by the federal VRA to protect and serve their voters. For example, the Virginia VRA criminalizes voter intimidation, and the New York VRA expands language access for voters with limited English proficiency.
So far, eight states have adopted state VRAs. This is a great start — but the freedom to vote should be accessible to every voter, not just ones who live in voter-friendly states. The federal VRA is still the best tool for most voters to fight voting discrimination, but states can go beyond that to create an even better tool for their own citizens.
Model Legislation
To encourage states across the country to adopt their own state VRAs, Campaign Legal Center and our partners at four legal organizations — the Legal Defense Fund, Election Law Clinic at Harvard Law School, LatinoJustice PRLDEF and Asian American Legal Defense and Education Fund (AALDEF) — have developed model legislation with eight core provisions.
The model bill is meant to serve as a template that state lawmakers and advocates can easily adapt to safeguard voting rights and prevent discrimination in voting in their own states.
With this model bill, states can lead the way toward a more inclusive, representative and accountable government.
Learn more about the model legislation here.
There is still an urgent need for Congress to update the federal VRA by passing the John R. Lewis Voting Rights Advancement Act. In the meantime, states have the responsibility and opportunity to supplement the protections of the federal Voting Rights Act and ensure that voters in their states have an equal opportunity to participate in elections and to elect representatives who are responsive to their needs and priorities.
In doing so, states can help us create a government that is truly of, by and for the people it was created to serve.