Opinion: Merrick Garland: It is Time for Congress to act Again to Protect the Right to Vote

A young Black woman demonstrator at a rally at the Capitol protests voting rights limitations contained in bills written by Republicans in the state legislature. – Austin, TX, USA – July 31, 2021 (Shutterstock)

By Merrick B. Garland, Washington Post

Our society is shaped not only by the rights it declares but also by its willingness to protect and enforce those rights. Nowhere is this clearer than in the area of voting rights.

Fifty-six years ago Friday, the Voting Rights Act became law. At the signing ceremony, President Lyndon B. Johnson rightly called it “one of the most monumental laws in the entire history of American freedom.”

Prior attempts to protect voting rights informed his assessment. The 15th Amendment promised that no American citizen would be denied the right to vote on account of race. Yet for nearly a century following the amendment’s ratification, the right to vote remained illusory for far too many.

The Civil Rights Act of 1957 marked Congress’s first major civil rights legislation since Reconstruction. That law authorized the attorney general to sue to enjoin racially discriminatory denials of the right to vote. Although the Justice Department immediately put the law to use, it quickly learned that bringing case-by-case challenges was no match for systematic voter suppression.

Things would not have changed without the civil rights movement’s persistent call to action. By the time a 25-year-old John Lewis was beaten on the Edmund Pettus Bridge in Selma, Ala., the Justice Department had been embroiled in voting rights litigation against the surrounding county for four years. Although the county had approximately 15,000 Black citizens of voting age, the number of Black registered voters had only risen from 156 to 383 during those years.

By 1965, it was clear that protecting the right to vote required stronger tools. The Voting Rights Act provided them. Central to the law was its “preclearance” provision, which prevented jurisdictions with a history of discriminatory voting practices from adopting new voting rules until they could show the Justice Department or a federal court that the change would have neither a racially discriminatory purpose nor a racially discriminatory result.

By any measure, the preclearance regime was enormously effective. While it was in place, the Justice Department blocked thousands of discriminatory voting changes that would have curtailed the voting rights of millions of citizens in jurisdictions large and small.

One thwarted change involved McComb, Miss. A large group of Black residents in the city had long voted at the Martin Luther King Jr. Community Center, which was close to their homes on the east side of railroad tracks that run through the city. In 1997, the city tried to move that group’s assigned polling place to the American Legion Hut on the west side of the tracks. To cross those tracks, Black voters on the east side — many of whom lacked transportation — would have had to travel substantial distances to find a safe crossing. Recognizing that difficulty, the Justice Department blocked the change.

While the Voting Rights Act gave the Justice Department robust authority, it also imposed checks on that power. Jurisdictions had the option to go to federal court to show that their voting changes were lawful. This ensured fairness and accountability, but without the inefficiencies and ineffectiveness that existed prior to 1965. It was a balance that worked and received broad support: Congressional reauthorizations of the act were signed into law by President Richard M. Nixon in 1970, President Gerald Ford in 1975, President Ronald Reagan in 1982 and President George W. Bush in 2006.

That invaluable framework was upended in 2013, when the Supreme Court’s decision in Shelby County v. Holder effectively eliminated the act’s preclearance protections. Without that authority, the Justice Department has been unable to stop discriminatory practices before they occur. Instead, the Justice Department has been left with costly, time-consuming tools that have many of the shortcomings that plagued federal law prior to 1965.

Notwithstanding these setbacks, the Justice Department is using all its current legal authorities to combat a new wave of restrictive voting laws. But if the Voting Rights Act’s preclearance provision were still operative, many of those laws would likely not have taken effect in the first place.

In a column published after his death, Lewis recalled an important lesson taught by Martin Luther King Jr.: “Each of us has a moral obligation to stand up, speak up and speak out. When you see something that is not right, you must say something. You must do something.”

On this anniversary of the Voting Rights Act, we must say again that it is not right to erect barriers that make it harder for millions of eligible Americans to vote. And it is time for Congress to act again to protect that fundamental right.