Nerd Stuff — What Was the Voting Rights Act?

Ajouté : 2026-05-14

[00:00:00]Regular viewers, and you should become a regular viewer, will know that about a week or so ago, I said I would do a full-on video explaining the Voting Rights Act. That's because the Voting Rights Act has been a major topic of discussion over at this channel in the wake of the Supreme Court's decision in Calab, Louisiana. You can watch my other videos to get a full explanation of that decision and what I think of it and what I think its implications are. But as I was making those videos, it occurred to me that it would be worth just doing a straightforward explanation of what the Voting Rights Act of 1965 was exactly.

[00:00:32]I'm not going to tell the entire story of how the Voting Rights Act came to be.

[00:00:37]That is something I simply do not have the time for. But you can read about the making of the VRA and Taylor Branch's wonderful series on the Civil Rights Movement. You can also watch the movie Selmo, which does a pretty decent job of it. There's a lot of material out there about how we got to the VRA, but what the VRA is, that's a little less available and that's where I can provide some value at. So, consider this an episode of Nerd Stuff. Haven't done one in a while on the Voting Rights Act. So, before we start talking about the 1965 act, it's worth thinking about the federal government's relationship to protecting voting rights prior to that point. In 1868, Congress passes and the states ratify the 14th amendment to the Constitution, which has a lot of provisions. We've talked about many of them on this page. But when it comes to voting rights, there's one particular provision worth pointing out. It's section two of the 14th Amendment, which reads, "Representative shall be aortioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.

[00:01:38]But when the right to vote at any election for the choice of electors for president or vice president of the United States, representatives in Congress, the executive and judicial officers of a state, or the members of legislature thereof, is denied to any of the male inhabitants of such state, being 21 years of age, and citizens of the United States, or in any way a bridged except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens.

[00:02:08]21 years of age in each state. Now, what this section does is say in short, that was a bit of a mouthful. If a state disenfranchises their population, then they'll lose proportionally that much representation in Congress. Section 2 has never been enforced. It is almost a dead letter of the Constitution. It's still in effect still there. A Congress could enforce section two. And I might talk a little later in a different video about thinking of section two as a potential remedy for extreme forms of partisan gerrymandering, but it's never been used. I'll note one interesting thing about section two is that it is the first time you see in the constitution any mention of a right to vote. And that's why I bring it up. It's both an attempt to protect the right to vote, to protect voters from disenfranchisement, and it's the first time the Constitution suggests that there is in fact an affirmative right to vote. Two years later, in 1870, Congress passes and the states ratify the 15th Amendment to the Constitution, which reads as such. Section one, the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude. Section two, that Congress shall have the power to enforce this article by appropriate legislation. This is much more expansive, of course. It doesn't just protect Americans from having the right to vote, abridged or denied on the basis of race, but it also says that Congress can affect this through appropriate legislation, which is understood to be basically a reference to the necessary and proper clause in which Congress has the authority to do what is necessary and proper to affect its commands, affect its dictates, affect its obligations into law. in subsequent voting rights legislation and the voting rights act for that matter will be predicated not just on Congress's article one authority to shape election rules but on the 15th amendment straightforwardly the last piece of voting rights legislation we get in the 19th century is the 1890 elections bill called the force bill by its opponents the 1890 election bill would have federalized voter registration in covered states in the south in an effort to protect black voters in particular from disenfranchisement it came dangerously close to passing but was killed by a Senate filibuster. And it marks the last time basically until the 1950s that we get a serious federal attempt to protect voting rights. I would argue that you can kind of mark the end of reconstruction in a real sense with the 1890 bill. People disagree with this, but I think it's a good ending point for hey, reconstruction is over now. And I wrote about the 1890 bill many years ago. Here is that piece. You can check that out.

[00:04:49]All right. So, our first real voting rights legislation after 1890 comes in 1957. It's a civil rights act of 1957.

[00:04:59]Somewhat obscure, a pet project of Lynden Johnson of all people who was looking ahead to running for president and thought he needed to shed the baggage of being a white southerner a little bit. The Civil Rights Act of 1957 gave the attorney general the power to bring lawsuits to protect equal voting rights and to hold persons who disobeyed court orders prohibiting discrimination and criminal contempt. It authorized appointment of another assistant attorney general to head a civil rights division in the justice department and created a special federal district court to hear voting rights cases taken out of state courts. Couldn't trust state courts to actually do well by the people in them. So a new court was established to remove those cases to federal court.

[00:05:36]The 57 act also established a six-member commission on civil rights to gather information on discrimination and voting rights and issue annual reports on the problem. Now this bill basically did a whole lot of nothing. It had no meaningful effect on voting rights. But this commission on civil rights ends up collecting a lot of the information, a lot of the data, a lot of the research needed to build out the Voting Rights Act of 1965.

[00:06:02]So that ends up being quite useful. The rest of it, not so much. In 1960, there was another Civil Rights Act, very modest, very minor. This one authorized federal officials to investigate complaints of voting discrimination and register qualified voters. It also required voting records to be preserved for 22 months following any primary, special or general election at which there were candidates for federal office and it empowered a federal district court judge to issue registration orders into into and to replace state registars with federal officials. Once again, it's hard to say this one mattered all that much.

[00:06:36]Did not have much of an effect, but laid down some stuff that would be of more use once there is proper federal enforcement.

[00:06:43]Once there is proper federal protection of voting rights. Now we get the Voting Rights Act of 1965, five years later, following the Civil Rights Act of 1964, following the March on Washington 1963, following Bloody Sunday in Selma, Alabama, and the work of the Southern Christian Leadership Conference and the Student Nonviolent Coordinating Committee. This is where John Lewis got his head best in. And this is what you can see dramatized in the film Selma.

[00:07:08]The push for the Voting Rights Act was very straightforward. Yes, the Civil Rights Act ended discrimination in public accommodations, but ending discrimination doesn't matter that much if you can't exercise political power, if you can't exercise political authority. And black Americans in the South were still by custom and by practice and in some cases by law blocked, limited from engaging in the political process.

[00:07:32]Ostensibly neutral tools like literacy tests and poll taxes were worked to keep many black Americans most black Americans in the south off the voter roles and then straightforward violence and intimidation did the work for those who were willing to brave registars and attempt to exercise their constitutional right to vote.

[00:07:52]One thing I like to mention, I like to bring up whenever talking about southern disenfranchisement is that although we discussed it in terms of black Americans, as we should because they were primarily affected by this, and the purpose of it was to disenfranchise black Americans going all the way back to the imposition of Jim Crow constitutions in the 1890s and the early 20th century. That was the point. It is also true that these laws, these rules work to disenfranchise a lot of white voters, too. The South in general had the lowest rates of voter registration across racial categories up until the 1960s, up until the Voting Rights Act.

[00:08:24]And I would say that it is a real testament to the power of the psychological wage of racism that so many white Americans in the South did not think to do anything about the fact that they were being disenfranchised because they got some kind of psychic satisfaction from the disenfranchisement of black Americans. Sad stuff, but that was the situation. The Voting Rights Act of 1965 changes all of this. What is in the Voting Rights Act? That's the whole point of this little video.

[00:08:52]The major provisions of the Voting Rights Act are of such. First, prohibits the enactment of any election law to deny or a bridge voting rights on account or race. It suspended all literacy tests in states and counties that used them and were less than 50% of adults that voted in 1964.

[00:09:09]It prohibited enforcement of new voting rules or practices until federal reviewers could determine if their use would continue voting discrimination.

[00:09:17]This is arguably the most powerful part of the bill. It's called pre-clarance.

[00:09:21]It basically in all covered jurisdictions kept those jurisdictions from imposing any new voting rules that would work to disenfranchise people.

[00:09:32]It assigned federal examiners to list qualified applicants to vote and to serve as poll watchers to keep an eye on efforts to informally discriminate against people.

[00:09:43]It authorized the attorney general to institute civil actions to seek enforcement of the act and it prohibited any person acting under color of law or otherwise from intimidating or denying any eligible person from voting. I want to say a little more about pre-clarance because it really is a centerpiece of the bill. The framers of the VRA realized that officials could discriminate in any number of ways beyond those that were explicitly outlawed. They could locate polling places and say white neighborhoods versus black ones. They could redistrict such that black voters could not possibly elect the candidate of their choosing. And so section five pre-clarance is written as a prophylactic.

[00:10:21]Section four provides the formula for pre-clarance which basically is any jurisdiction with a history of discrimination not just in the south but nationwide. And it prevented a covered state or jurisdiction from putting into effect, quote, any voting qualification or prerequisite to voting or standard or practice or procedure with respect to voting different from those in force or effect on November 1st, 1964 without first submitting that change to the Justice Department. If it's found to be discriminatory in intent or effect, it cannot go into effect.

[00:10:53]Powerful stuff. The formula for pre-clarance is struck down in Shelby County. be holder. Technically, you could still do a new kind of pre-clarance. In practice, it's proven very difficult to find something. Now, some of the practices the VRA blocked were, for example, changing single member districts to at large voting to basically swamp out the black population and prevent them from electing someone.

[00:11:17]Urban annexation. So, let's say you're a city, it's majority black, you are the white people in power. You would then annex nearby majority white areas to again kind of create a larger political community and wash out, drown out, dilute the votes of black Americans there. And then redistricting as we've discussed, it is genuinely hard to overstate the impact of the VRA.

[00:11:42]Within a few years, there were 1 million new registered black voters in the South. And the biggest impact overall was the local and state level. The registration rates were something like 20% in Alabama, 25% in Georgia, 30% in Louisiana, and about 10% or less in Mississippi prior to the VRA. And then after registration, Mississippi registration for black voters jumped to 60%. Louisiana near 60%.

[00:12:10]Georgia 50%. I mean, huge increases across the South. Really significant stuff. And then of course there are elected lawmakers. Prior to the VRA, there are six black members of Congress and only some dozens of black elected officials in the country and none of the Congress people were in the south. After the VR, we see a steady increase in the number of elected officials at state and local levels going from again a couple dozen to hundreds to eventually thousands.

[00:12:41]The largest such increase since reconstruction.

[00:12:44]And and in Congress, we see federal representation start to go up from six in the '60s to around 17 10 years later to about 20 in the 80s. And there's a big change in the 80s that causes this again to jump even more in the '9s and 2000s. And we'll get to that in a sec.

[00:13:01]There have been a number of major amendments. There was a 1970 amendment to the VRA which extended pre-clarance for 5 years and suspended the use of literacy tests in all states until 1975.

[00:13:13]It also increased the probationary period for any state that wanted to escape pre-clarance.

[00:13:18]There was the 1975 amendment which was a 7-year extension of the provisions of the act. A nationwide ban on literacy tests for voter registration regardless of whether the jurisdiction was covered by the act. New protections for language minorities so certain language minorities could get materials printed in their own language. They could vote.

[00:13:37]Um, and it required the Census Bureau to compile registration and voting statistics for every jurisdiction covered by the act.

[00:13:46]Now, the big amendment comes in 1982.

[00:13:50]Two years prior, the Supreme Court had found that the Voting Rights Acts provisions, especially under section two, only apply to discriminatory intent. If you could prove that a state were acting in a discriminatory way, then the remedies would kick in. But Congress said, "No, that's too difficult to do and doesn't really capture what we intended for this law to do." So, they passed this revision, which first extends pre-clance for another 25 years.

[00:14:17]It extended the probationary time yet again for states and localities that wanted to escape pre-clarance.

[00:14:24]Now, they could not have used the discriminatory test or device for voter registration for 19 years before they could escape pre-clarance. Minute overturned the court's decision in Mobile vowen which as I said held there must be intent to discriminate for the state to be liable. The new standard is simply that the law or procedure must result in discrimination. It's an effects test. In 1986, the court would affirm this and introduce an effects test that would allow for states to create majority minority districts so that voters in those states actually had an opportunity to elect the representatives of their choosing.

[00:15:01]In 1990, states engaged in redistricting according to this new rule, this new test. And you see an explosion of black representation at the federal level, such that by 2015, we were finally at the point where the percentage of black Americans in Congress roughly matched their percentage in the overall population.

[00:15:20]I'll point out real quickly that opponents of the VRA, including Supreme Court justices, assorted conservative columnists, you know, the types, will say that, look, so much has changed.

[00:15:30]Look at all the black representation we have in Congress. Look how easy it is for black Americans to get elected. What they never note is that many of these people are elected in covered jurisdictions, in places where the VRA is very much in effect. So to say that we no longer need to VRA because of all this progress is to as Ruth Bader Ginsburg pointed out in Shelby County, throw away your umbrella because you're not getting wet in the rain even as it's raining. And I think we can see now in the move of many southern states to obliterate their majority minority districts. It's proving very true that the bar rate was necessary to ensure that level of representation in Congress. It is worth noting too that other than Tim Scott in the Senate, all the black Republicans in Congress are retiring as well. So, it's not as if it is not as if Republican voters have been eager to elect black American congressmen.

[00:16:23]Anyway, back to the bar.

[00:16:26]1982 big amendment. That is the one that effectively the court overturned in its recent decision.

[00:16:34]It's worth mentioning the 1992 Voter Registration Language Assistance Act, which isn't a VRA reauthorization, but did expand the language provisions of the 1975 amendment even further.

[00:16:46]I believe that this is also the bill that provided for voter registration at DMVs and such, but that might have been a different bill. I don't remember off the top of my head. I have notes here for this, but I don't remember that one off the top of my head. The first and only voting rights act amendment of the 21st century was in 2006. This was passed by overwhelming majorities of Congress after an extended period of factf finding. Congress engaged in a serious investigation to determine whether or not the provisions of the VR were still necessary and they concluded and I note I will note that this is a Republican President George W. Bush in the Republican Congress. They concluded that absolutely this was still necessary. The larger political context is worth saying is that Bush was very much trying to assemble kind of a multi-racial conservative coalition. He called this the ownership society. So there was a real incentive among Republicans to really engage in this kind of thing and take this seriously. And they did. They reauthorized again nearly unanimous in 2006 and extended the voting rights act for another 25 years including the prohibitions on the use of tests or devices to deny the right to vote in any election and the requirement for certain states and localities to provide voting materials in multiple languages. It did end the use of election examiners and observers but it maintained pre-clarance. All right, it's after this point that things go downhill. I've already mentioned Shelby County vholder.

[00:18:11]This was 2013. Shelby County, Alabama argued that it was unconstitutional for Congress to have renewed the covered jurisdiction and pre-clarance provisions of the VRA. Their view was that both provisions violated the 10th amendment to the Constitution as well as some sense that states have to be treated equally. This is nowhere in the Constitution, but that was the argument.

[00:18:30]By a 5-4 majority, the Supreme Court agreed, holding that the formula for pre-clarance was unjustified given that there had been significant declines in voting discrimination since 1965. Again, those declines are because of the VRA, John Roberts is an idiot.

[00:18:46]Writing for the majority, John Roberts argued that section 5 violated the principle of state sovereignty as well as the principle that the federal government cannot treat the states differently from each other. This is no, I got to say this is nowhere in the Constitution. The constitution says that once a territory is made a state, that state must be admitted to the union on the same level of equality, political equality as other states. But this idea that the federal government cannot treat states differently based on things that the states do is fabricated. It's made up. John Roberts loves to make up doctrines to get to his results.

[00:19:21]I'll note that Roberts makes no mention of the 15th Amendment in this opinion.

[00:19:25]the 15th amendment which gives Congress broad power to prohibit racial discrimination in voting. During oral arguments for the V, Anton Scalia, the late justice, called the law a racial entitlement and suggested that the court had to act to trim it because otherwise lawmakers would feel too pressured, I guess, by the blacks to keep it in effect.

[00:19:44]Scalia, not a great guy. And Roberts, it should be said, back in ' 82 when he was a young lawyer in the Justice Department, argued viferously against the 82 amendment to the VRA. He wrote that an effects test would eventually lead to a quota system in all areas since only when effects are mathematically proportionate would the test be satisfied.

[00:20:11]Within hours of the court handing down Shelby Holder, there were new voter ID laws in states throughout the former Confederacy, throughout the South, Texas, Florida, South Carolina, North Carolina, Alabama, Mississippi, Louisiana.

[00:20:24]They just for passing voter ID laws, strict ones. North Carolina when a federal judge later said was surgically targeted at black voters. Surgically targeted.

[00:20:39]In 2019, the court in Ruchi Common Cause, it's not a voter rights act decision, but it deals with voting rights, held that partisan gerrymandering was non-juditable and there was nothing the court could do to provide a remedy. The Constitution, according to Roberts, does not provide judicially enforcable limits on partisan gerrymandering in that petitioners in this case were asking courts to make their own political judgment about how much representation particular political parties deserve based on the votes of their supporters. I think this is silly.

[00:21:10]I think there's very clearly I think you can very clearly extract a pro-democracy principle from the Constitution that would put limits on partisan gerrymandering. But then I'm not a Supreme Court justice. What do I know?

[00:21:21]What do I know? In 2021, we get Bernovich v Democratic National Committee, another voting rights act case with an opinion written by Sam Alo.

[00:21:31]The background is that after Shelby County, Arizona passed a law banning ballot collection, making it illegal for anyone other than an election official or family member or caregiver to handle a completed early voting or absentee ballot. The Democratic National Committee sued, arguing that this discriminated against the state's non-white populations and that the state legislature had purposely passed the law to discriminate against minority voters by making it burdensome to vote, as they tended to live in counties with fewer or no in-person voting locations. and the DNC said this violated section two of the VRA. A district court ruled against the DNC. This was appealed. A circuit court ruled for the DNC and then in a six-figree decision written by Alto. The Supreme Court upheld the Arizona law saying that it did not violate section two of the VRA. Alto then limited the reach of section 2 saying that if a law conforms to standard practice existing in 1982 when the results test was added to the VRA, it cannot be challenged. If a rule only imposes small disparities for voters of color, it cannot be challenged. And if it serves a legitimate government interest, it most likely cannot be challenged. This is turning that section 2 amendment on its head, which which which was specifically looking at practices in effect in 82.

[00:22:46]The law says the amendment says the intent of the amendment was to give the government the tools to push back on and invalidate those practices. And here is Alito saying, "Oh, no, actually the practices are perfectly allowed." In 2023's Alan v. Milligan, the court actually agreed in 54 opinion that Alabama had cracked a compact and politically cohesive black population into multiple districts and prevented from electing more than two representatives. So it so it asked Alabama required Alabama to create a new majority minority district because it was covered under section two.

[00:23:20]Surprising, big surprise. That was in 2023. The following year in 24, an Alexander versus South Carolina NAACP and another Samito special, the Supreme Court reversed a district court judgment that the South Carolina legislature after the 2020 census had deliberately moved thousands of black voters out of the district to strengthen its Republican lean. The NAACP said that this was an illegal racial gerrymander and a violation of the equal protection clause of the 14th Amendment. A federal court agreed. Alto did not. In a six-3 decision, Alito said that there must be a quote presumption of legislative good faith and that accusing legislators of racial gerrymandering without hard evidence was unfair. And he directed lower courts to ignore circumstantial evidence of racist intent when assessing these gerrymanders. Basically, Alito's like, you can't call people racist. That's too mean, even if you have evidence that they're being racist.

[00:24:16]And you have to have firm definitive evidence raising the evidentiary bar here. basically making it impossibly high. This decision really did end the effective prohibition on lawmaker using race as a proxy for partisanship and made it all the more difficult to prove that a racial jerry mander is taking place. Alto is really agrieved by the idea that someone might be accused of racism when they're not acting racistly or at least not explicitly. So, this might have something to do with the fact, I've mentioned this before, he was part of a Princeton group that opposed the admission of women and minorities to the school or maybe it might not. I don't know. But he gets really angry at that suggestion that people are being that innocent people are being accused of being racist villain. And you see that in this opinion. I'll point out as well that in a concurrence, Clarence Thomas suggested that racial gerrymandering might actually be permitted under the constitution, which is crazy. Okay, so the most recent decision, Klay v.

[00:25:18]Louis or Louisiana vlay, however you want to put it, is building off of these Alto opinions in particular, is holding out partisan gerrymandering as a legitimate government interest that in any case the Supreme Court cannot do anything about.

[00:25:32]is saying that an effects test is unconstitutional, is a violation of equal protection, and that unless you can prove direct racist intent, which again the bar now is very high, section two does not really apply. You can't have a section two remedy against a racist effect in districtricing or some other voting rule. Only racist intent.

[00:25:56]And that the direct connection between race and partisanship has no bearing on this. In their opinion, the court kind of erases the connection, says, "Well, black people vote for Democrats, but if you control for race, it makes them different." But controlling for race ignores the effect. You're like obliterating the effect. The whole statistical effect, the whole thing happening is that race shapes partisan and political views. So, if you control for race and focus on party, you you're you're eliminating the effect. It's like a basic statistical error. But the court made it and here we are. Klay, for all intents and purposes, allows racial gerrymandering, meaning you can gerrymander people into districts or out of districts according to their race. As long as you could plausibly tie it to partisanship, it's all you got to do.

[00:26:42]What's the future of voting rights? I don't know. Doesn't look great. I wouldn't be surprised if the court begins to go after two other key voting rights decisions that we didn't discuss here. They are Baker v. Carr and Reynolds v.

[00:26:57]which deals first with the court's ability to to provide a judicial remedy to questions of representation when it comes to state level districting. And then second, establishes the rule in districtricting that one person must equal one vote and eliminate situations where small districts with just a few people have way more representation in state houses or in Congress than large districts with lots of people.

[00:27:27]Clarence Thomas seems to want to go after both of these. Uh he does not like them. He thinks that states should be allowed to create effectively these rotten burrows, right? Where a district of 100 people has way more representation than one of a thousand people. But we'll see where the court goes on that. We'll see where the court goes. That though is the Voting Rights Act in a nutshell. I guess this has gone kind of long. I hope it was informative.

[00:27:56]I hope you learned something and we'll do one of these another time. They take a lot of work. Takes a lot of work to put one of these together. But we'll do it another time to discuss some other aspect of American political life that you might be curious about and I know entirely too much about. I'll see you next time.

[00:28:20]As always, thank you for watching this video. Thank you for watching this channel. Consider this video. Consider giving a subscribe to this channel.

[00:28:28]Really appreciate the support. And again, I hope you came away having learned something new.