In 2023, state legislatures will convene in all fifty states to pass new laws, and thousands of newly elected lawmakers will have a chance to add their voices to the process. Hopefully, many of them will prioritize laws and policies that protect the freedom to vote.
This issue is particularly important given that the past few years have seen the proliferation of anti-voter laws that disproportionately affect Black, Hispanic, Asian, and Native American voters. Given federal inaction on voting rights, states need to step up to protect the freedom to vote for every American.
Lawmakers in Michigan and Minnesota, where the state legislatures will be under new control entirely, have an especially good opportunity to pass pro-voter legislation. What’s a long-lasting, far-reaching action that they 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 California, New York, Oregon, Virginia, and Washington. 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 get any changes to their elections approved, in a process called “pre-clearance,” by the Department of Justice or a federal court first.
The Supreme Court invalidated the part of the law that imposed pre-clearance on places with a history of discrimination in 2013 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—and 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 the local governments—the very government that implemented those discriminatory voting systems in the first place.
These lawsuits are incredibly costly and time-consuming, but 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 before implementing them, these lawsuits remain the only way to apply the federal VRA to protect the rights of minority voters.
State lawmakers can change all this by passing state VRAs. They can help reduce the burden on communities of color by making it easier to prove that a map or voting system discriminates against them through racial vote dilution.
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 court approval for changes they want to make to their elections, similar to the pre-clearance 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, five states have adopted state VRAs. This is a great start, but the freedom to vote should be accessible for 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.
There is still an urgent need for Congress to update the federal VRA by passing the John R. Lewis Voting Rights 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 lead the way toward a more inclusive and accountable government that is truly of, by and for the people it was created to serve.