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Tracing the Racial History of Voter Rights Legislation

On March 7, 1965, John Lewis laid battered on the Edmund Pettus Bridge, fighting for equitable voting rights and democratic access for all people, especially Black people. On August 6, 1965, his vision was manifested when the Voting Rights Act became law. Unfortunately, fifty years later, the Supreme Court gutted the Voting Rights Act’s protections with their verdict in the Shelby County vs. Holder case in June 2013. The major voter protection lost was “preclearance,” which required states to acquire federal permission before changing their voting laws. Without federal oversight, states (mainly in the south) immediately began passing restrictive laws that primarily targeted the voting rights of Black and Brown communities.

Our country has a long history of restricting voting access for people of color. Since the end of Reconstruction (1867-1877), White Supremacy has created systemic barriers to limit people of color’s access to democracy, usually through violent intimidation and restrictive voting laws. During Reconstruction, Black people actively participated in the political process due to their newly available right to vote. At this time, sixteen Black people served in the U.S. Congress, and hundreds of others did in state legislatures and local governments. As a reaction to the increase in Black leadership and representation in government, white supremacists began to engage in voter intimidation and violence, usually at the hands of the Ku Klux Klan, which emerged in response to the advances taking place during Reconstruction. By 1877, marred by violence and changing political will, Reconstruction ended, and the “Jim Crow” period began. It would be almost 100 years before another Black person served in Congress, and, until then, the Black vote would be substantially silenced until the courageous efforts of John Lewis and other activists. 

Today, we are experiencing another critical moment in voting rights history. Catalyzed by the pandemic’s disproportionate inequities and last summer's racial justice protests, voter turnout for the 2020 election hit record levels across the country. Voters leveraged new civic participation methods, including mail-in voting, early voting, voter drop-boxes, and extended voter registration deadlines. Heavily influenced by the minority vote, the 2020 election resulted in many groundbreaking firsts for racial and gender representation across the country, including the first woman and person of Black and Asian heritage as Vice President of the United States. The nation also saw shifts in the composition of the Senate and an increase in progressive ballot measures passed across the country. The results of the 2020 election have allowed record investments to be made in social services, healthcare, education, homelessness, and racial equity. The possibility of an equitable recovery has increased significantly because the voices of a diverse population were heard during the 2020 election. 

As before, many states have reacted to an increase in voting access for people of color with a wave of highly restrictive voting rights legislation. Currently, fourteen states have passed more restrictive legislation, and similar legislation proposed in 48 states. Unsurprisingly, many of the states that have enacted restrictive voter rights legislation have a history of disenfranchising Black and Brown voters, extending back to the Jim Crow era.  For example, in Arizona, SB 1713 proposes that early voters submit a copy of their IDs. According to the Washington Post, this disproportionately burdens minority voters who are less likely to hold the required I.D. for voting due to cost or general accessibility of DMV locations. Without federal legislation in place to support free and fair elections, states could severely limit the rights and voices of BIPOC populations in future elections and reverse many of the racial equity advancements made in our current political landscape.

Within this historical context, the SCG Public Policy team would like to share vital information regarding two federal bills that will determine the future of voting rights in this country: H.R. 1, the For the People Act, and H.R. 4, the John Lewis Voting Rights Act. SCG is committed to advancing racial justice and ensuring that our democratic access and participation are equitable. We believe that the philanthropic sector can strengthen democracy by supporting a fair and accurate census, equitable drawing of districts, and equitable access to voting. Now, SCG is committed to mobilizing philanthropy to engage in efforts that advance equitable access to voting.

What does H.R. 1 For the People Act do? 

H.R. 1 For the People Act of 2021 is an effort to expand all Americans’ access to the ballot box, police the use of finances in politics, and decrease corruption via increased security and strengthening of ethical rules. Each reform listed in the bill is a significant step in ensuring that our democracy is fair and inclusive. Additionally, many of these reforms will be implemented in November of 2022, except for redistricting and public finances. Some of the bill’s key reforms are listed below. You can view the bill’s full text here. 

Voter Access:  

  • Modernizing voter registration with an upgraded system, same-day and online registration, and moving toward an opt-out option when utilizing government agencies (I.e., DMV, public university, etc.). This modern approach will help curb extensive voter purges such as those seen during the 2018 midterm elections that disproportionately impacted minority voters who are more likely than white voters to have common last names. 

  • Restoration of the Voting Rights Act would give the federal government power to regulate state voting rules. Historically this act was used towards states with a history of discrimination to monitor changes in voting rules. H.R. 1 would also restore this act for people with prior convictions. Given the disproportionate representation of minority communities in the criminal justice system, this act would amplify their voices. 

  • Moving toward equitable voting options via the improvement of the mail voting system, a nationwide institution of early voting, and regulation of voter wait times. These improvements would increase the chances of diverse voter turnout, especially for those with disabilities, inflexible working schedules, etc.  

 

Campaign Finances:  

  • Matching Funds for both Presidential and Congressional campaigns to give more Americans the options for running and support elected officials running for office. The commitment of the government to match small funds in a campaign helps to decrease financial barriers in place for minority groups and women.   

 

Redistricting Reform: 

  • Outlaw partisan gerrymandering and impose a set of rules for how districts should be drawn to give special protections for communities of color and prioritize keeping communities with a shared interest together. This reform would help combat historically discriminatory practices of redistricting and the suppression of minority voices. This legislation would also require the hiring of an independent redistricting commission.  

 

Election Security:  

  • Replacement of paperless voting systems and funds used toward the audit of election results to ensure physical evidence and increase the validity of the election results.  

  • Oversight of private vendors who maintain the election systems by requiring certification and verification of cybersecurity best practices. According to the Brennan Center, the 2018 election saw system failures that could have been prevented if vendors had notified clients promptly.  

 

Ethics:  

  • Requirement for the President, Vice President, and others who run for office to disclose tax returns.  

  • Prevent members of Congress from serving on corporate boards by expanding conflict of interest law.  

  • Code of Ethics requirement for the United States Supreme Court  

  • Strengthening the Office of Government Ethics, charged with overseeing and preventing conflicts of interest for federal executive branch officers and employees via the increase of enforcement authority.

 

Current Status:

House Democrats have introduced H.R. 1, the For the People Act in the 117th Congress. The Senate has received it. The biggest concern will be the filibuster. Given that democrats such as Joe Manchin III and Kyrsten Sinema have expressed they want to keep the filibuster and it is unclear if fifty votes could be reached. Additionally, Minority Leader Mitch McConnell openly disagrees with this bill because of the proposed rules around campaign finance. 

What does H.R. 4 The John Lewis Voting Rights Advancement Act do?

John Lewis and many other civil rights activists lost their lives fighting for equal voting rights. Their sacrifice resulted in the Voting Rights Act of 1965, which provided federal protections to prevent discriminatory practices and prejudicial barriers in voting. Specifically, it created the “pre-clearance” system, which prevented states with a history of voting discrimination from making changes to voting laws and practices unless federal officials cleared those changes. The Voting Rights Act of 1965 faced considerable challenges since its inception, but the 2013 Supreme Court decision Shelby County v. Holder removed the “preclearance” requirement. The court’s decision opened the door for many discriminatory changes to voting practices, including changing district boundaries to disadvantage select voters, instituting more onerous voter identification laws, reducing or changing polling locations with little notice, and many other tactics. 

Voting rights activists have been advocating for the reinstatement of the Voting Rights Act since 2019, when they first introduced H.R. 4. Since the 2020 election, there has been an increase in discriminatory voting laws that disproportionally affect people of color, the elderly, low-income people, transgender people, and people with disabilities. This doubling down on voter suppression has increased the need for the passing of H.R. 4 and created the need for additional legislation, such as H.R. 1. In many ways, voters are more vulnerable to discrimination now than when the Voting Rights Act became law in 1965.

What does The John Lewis Voting Rights Advancement Act do to protect voting rights?

  • The Shelby County v. Holder decision was limited in scope and recommended Congress create a new formula for calculating a states’ history of discriminatory voting practices. The John Lewis Voting Rights Advancement Act proposes a new formula and restores the protections of the Voting Rights Act by:

  • It modernizes the VRA’s formula by determining which states and localities have a pattern of discrimination. States subject to the oversight would include any state that has had 15 or more voting rights violations within the last 25 years, any state that has had 10 or more voting rights violations with at least 1 of those violations committed by the state itself (as opposed to a jurisdiction within the state) within the last 25 years, and any subdivision in a state that has had 3 or more voting rights violations within the previous 25 years.  

  • It would ensure that last-minute voting changes do not adversely affect voters by requiring officials to publicly announce all voting changes at least 180 days before an election.

  • It would expand the government’s authority to send federal observers to any jurisdiction where there may be a substantial risk of discrimination at the polls on election day or during an early voting period.

 

Current Status

The John Lewis Voting Rights Act has not yet been reintroduced in the 117th Congress. The original sponsor of the bill, Rep. Terri Sewell, stated that this is an intentional move. According to Speaker Nancy Pelosi and others, the bill will not likely face a vote until September 2021. Although H.R. 4 has not been reintroduced in the 117th Congress, the legislation has already received public support from Senators Raphael Warnock, Joe Manchin, and President Joe Biden, who advocated for the bill’s passage in his first address to Congress. The bill will face a significant hurdle of getting through a Republican filibuster in the Senate. It would require 60 votes to break the filibuster and proceed to an actual vote on the bill.

How Philanthropy can Engage

Philanthropy can advance racial justice by supporting efforts that counter the rise of voting restrictions and legislation that predominantly impact communities of color. Our sector can partner with and invest in communities, organizers, coalitions, and movement builders working tirelessly to protect and expand voting rights. 

Protecting democracy and promoting civic participation is a year-long effort. Communities and organizations need support between elections to connect, educate, and mobilize. Currently, nonprofit litigation groups such as NAACP Legal Defense and Educational Fund, the Native American Rights Fund, The Leadership Conference Education Fund, and others are working to fight against policies with restrictive provisions across the U.S. Such groups work throughout the year with local communities and national partners to protect American democracy. In addition, Philanthropy can support this work through various grantmaking opportunities, such as pooled funds that create space for funders to coordinate their efforts with other grantmakers and work together to increase their impact. For example, the State Infrastructure Fund operates as a funder collaborative to support state-based and state-focused nonpartisan organizations that engage their communities through advocacy, organizing, and litigation. Such efforts provide funders with the opportunity to invest both at the local and national level, partner and work across sectors, and learn from donors from across the nation. Another form of support is funding organizations working on litigations to stop anti-democratic policies through general operating grants.

While some grantmakers cannot advocate or take a position on legislation, there are additional forms of taking action. Public and private foundations can call or write members of Congress to educate and inform them about what they are hearing and seeing in their communities, grantees, and partners around voting restrictions. All types of foundations can participate in public comment. Public foundations can contact policymakers to share a formal position in support or opposition of specific legislation. Finally,  funders can connect with other funders through philanthropy-supporting organizations such as Southern California Grantmakers. SCG's policy team will continue to monitor legislation that impacts those we serve.

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