Using Lesser Known Portions of the Voting Rights Act, New Lawsuits Aim To Protect Voters

White letters that read “VRA” written on a diagonal from left to right across a navy blue background. Atop the navy background, there is a collage of various provisions of the Voting Rights Act of 1965 — including the text of Section 201 and Section 202(d) — in light red, royal blue and light purple. There is also a black and white image of an alarm clock and a black and white image of a set of hands filling out an absentee ballot witness certificate. Lastly, there are a handful of royal blue absentee ballots on the far-right side of the graphic.

In the wake of Selma, Alabama’s infamous “Bloody Sunday,” in which white state troopers brutally attacked peaceful voting rights marchers, President Lyndon B. Johnson signed the Voting Rights Act of 1965 (VRA) into law. The impacts of the landmark voting rights legislation were immediate and sweeping: Within four years of its passage, nearly one million Black citizens — a vast majority of whom resided in southern states — became registered to vote and the number of Black elected officials in the South more than doubled following the 1966 elections.   

Decades later, the comprehensive legislation that was enacted with the purpose of abolishing race-based barriers to voting is still heavily relied upon to protect the franchise. One of the more well known provisions of the VRA is the now-defunct Section 5, which up until 2013, required jurisdictions with a history of racial discrimination to seek federal approval for proposed changes to voting rules and redistricting plans.

Section 2 — which prohibits racially discriminatory voting laws, maps and practices — is another widely recognized portion of the law that was recently upheld by the U.S. Supreme Court’s decision in Allen v. Milligan this past June. As the most litigated part of the VRA, Section 2 is currently the basis for at least 30 federal lawsuits challenging redistricting plans throughout the country.

However, as former Chief Justice Earl Warren wrote in a 1969 Supreme Court opinion in Allen v. State Board of Elections: “[t]he Voting Rights Act was aimed at the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race.”

Over the past few months, pro-voting forces have brought a series of lawsuits under lesser known and rarely litigated provisions of the VRA that seek to combat some of the more “subtle” — but nevertheless pernicious — voting laws that disenfranchise citizens across the country. From Washington to North Carolina and other states in between, these lawsuits are tapping into more obscure portions of the VRA in order to protect voting rights. 

In Wisconsin, a new lawsuit challenges the state’s absentee ballot witness requirement under Section 201 of the VRA. 

Under Wisconsin law, absentee voters are required to complete their ballots in the presence of an adult U.S. citizen witness who can attest to the voter’s qualifications. Witnesses must complete a written certificate vouching for a voter’s eligibility that contains a witness signature and address. 

If a witness certificate is not properly completed or missing from an absentee ballot altogether, voters are put at risk of disenfranchisement unless they are able to rectify the defect in a timely manner. 

A recent federal lawsuit brought on behalf of four individual Wisconsin voters alleges that the state’s absentee ballot witness requirement contravenes Section 201 of the VRA, which prohibits denying the right to vote on the basis of a citizen’s failure to comply with a “test or device.” Section 201 defines an unlawful “test or device” as any requirement that a voter must satisfy as a prerequisite for voting. 

These illegal prerequisites include: passing a literacy test, demonstrating educational achievement in a particular subject, possessing “good moral character” or proving one’s qualifications by “the voucher of registered voters or members of any other class.”

Relying on the last category, the plaintiffs contend that Wisconsin’s witness requirement is tantamount to a voucher requirement that Section 201 forbids since it conditions one’s ability to cast an absentee ballot — and have it counted — on the presence of a witness who must vouch for a voter’s qualifications. 

The VRA’s ban on “tests or devices” was initially enacted to combat southern states’ attempts to disenfranchise Black voters after the Civil War.

As the Wisconsin lawsuit highlights, the VRA provision banning “tests or devices” was codified in the original 1965 legislation to outlaw a discriminatory post-Civil War voting practice in which prospective voters would need a “supporting witness” to affirm their qualifications. 

The practice was adopted by many southern states for the sole purpose of disenfranchising Black voters: “Because only someone who was ‘already a registered voter in the county’ could serve as a supporting witness, this rule empowered registered White voters to prevent otherwise qualified Black neighbors from [voting] by refusing to vouch for their eligibility,” the complaint explains.

According to the lawsuit, although witnesses in the context of Wisconsin’s rule are not required to be registered voters, they are nonetheless “member[s] of a class” under Section 201 since they must be both adults and U.S. citizens. And while the VRA’s prohibition on tests or devices initially only applied to certain “covered” jurisdictions with histories of discrimination, Congress temporarily extended the ban to encompass all states — not just “covered” jurisdictions — when it amended the law in 1970. Ultimately, Congress rendered the ban permanent and applicable nationwide when it again amended the VRA in 1975. 

In addition to the VRA, the Wisconsin lawsuit also mounts claims under the Civil Rights Act.

As an alternative to the VRA argument, the plaintiffs claim that the witness requirement violates the Materiality Provision of the Civil Rights Act, which protects against disenfranchisement on the basis of trivial errors that are immaterial to a voter’s eligibility. The lawsuit points to the fact that during the 2022 midterm elections alone, over 2,200 absentee ballots were rejected due to witness certificate issues, such as a missing witness zip code. 

The plaintiffs maintain that the risk of disenfranchisement due to the witness requirement is disproportionately borne by minority voters, recently naturalized voters and student voters, who live in Wisconsin’s most populous municipalities that experience the “largest share of absentee ballot rejections.” 

Marc Elias discusses various lawsuits his firm has filed against states using the Voting Rights Act on Brian Tyler Cohen’s YouTube show “Democracy Watch.”

Relying on Section 202(c) of the VRA, lawsuits in North Carolina and Washington challenge residency requirements for voting. 

When Congress amended the VRA in 1970, it added a new provision — known as Section 202 — aimed at protecting the right to vote in presidential elections and ensuring that voters could enjoy “free movement” across state lines. The provision did so by regulating and standardizing how states conducted presidential elections. 

One such regulation outlined in Section 202(c) completely abolished so-called “durational residency requirements” as a precondition for voting in presidential elections. Under these requirements, voters would need to reside in a particular state for a given amount of time before they can register to vote.

Despite the VRA’s clear mandate, states including North Carolina and Washington require their citizens to reside in the state for at least 30 days prior to the election in which they seek to vote. Two new federal lawsuits filed on behalf of the North Carolina Alliance for Retired Americans and the Washington State Alliance for Retired Americans allege that their states’ respective durational residency requirements flout Section 202(c) as well as the U.S. Constitution.

Durational residency requirements are different from registration cutoffs, which the VRA allows. 

The Washington and North Carolina lawsuits acknowledge that a separate portion of Section 202 and the U.S. Constitution permit states to impose a 30-day pre-election registration cutoff — which is distinct from a residency requirement — for presidential elections. States may use this 30-day registration deadline to ensure accurate voter lists and limit registration to bona fide residents, but neither Washington nor North Carolina does so. Rather, both states allow voters to register within 30 days of an election. 

The North Carolina and Washington retiree organizations underscore that their state’s 30-day durational residency requirements are in fact longer than their state’s registration deadlines, thereby depriving otherwise eligible voters of the right to register and cast a ballot because they moved to the state too recently. In both states, voters must attest to satisfying the 30-day residency requirement on voter registration forms. 

In North Carolina, eligible voters may register up until the Saturday before Election Day using the state’s same-day registration process. However, individuals who do not satisfy the 30-day residency requirement cannot take advantage of this same-day registration opportunity and are accordingly disenfranchised. Likewise in Washington, voters may register to vote any time up until and on Election Day proper, but those who move to the state or a new county within the state fewer than 30 days before Election Day cannot register to vote at their new address. 

Consequently, the nonprofit plaintiffs conclude that the challenged residency requirements — which far exceed each state’s registration deadlines — are largely arbitrary and merely serve to discriminate against new residents. 

The Section 202(c) lawsuits also bring claims under the First and 14th Amendments, alleging that the durational residency requirements unconstitutionally burden the fundamental right to vote without a compelling justification. Both cases cite the Supreme Court’s 1971 opinion in Dunn v. Blumstein, which held that Tennessee’s durational residency requirements “deny some citizens the right to vote” and “impinge[] on the exercise of a second fundamental personal right, the right to travel.” 

The North Carolina and Washington cases both assert that the Supreme Court’s decision in Dunn and U.S. Constitution “prohibit[] such requirements in all elections” — not just presidential elections — and ultimately request that the requirements be permanently blocked. 

Using Section 202(d) of the VRA, a Georgia lawsuit seeks to extend the time period in which voters can request an absentee ballot.

In addition to facilitating voter participation in presidential elections through the elimination of durational residency requirements, Congress also sought to remedy the “lack of sufficient opportunities for absentee registration and absentee balloting in presidential elections” when it incorporated Section 202 into the 1970 VRA Amendments.

In particular, Section 202(d) stipulates that states are required to allow all qualified voters who will be outside of their election district on Election Day to cast an absentee ballot in a presidential election so long as they applied at least seven days before the election. 

Georgia previously comported with this federally mandated deadline up until 2021 when it enacted an omnibus voter suppression law, Senate Bill 202, in response to record high turnout in the 2020 general election. Under S.B. 202, the latest a voter may apply for an absentee ballot (via mail, email fax or online) is 11 days before an election — four days before the VRA’s prescribed deadline. 

According to a new lawsuit, “Georgia no longer complies with key provisions of the Voting Rights Act.”

At the end of October, the International Alliance of Theater Stage Employees (IATSE) Local 927, a chapter of the largest union representing workers in the entertainment industry, filed a federal lawsuit challenging Georgia’s curtailed timeframe during which voters can request absentee ballots. IATSE’s complaint argues that Georgia’s premature absentee ballot application deadline stands in direct violation of Section 202(d) and has the potential to “deprive Georgians of their right to participate in choosing who will lead the United States in the coming years.”

The union organization claims that Georgia’s absentee ballot application deadline is especially burdensome to its members, because their work in theater and television productions requires them to frequently travel around and outside of Georgia and often on short notice. In turn, IATSE members might not know if they will need to vote absentee until shortly before Election Day. 

“By shortening the timeframe for requesting absentee ballots, Georgia’s new application deadline deprives IATSE’s members of full lawful access to absentee ballots and the rights conferred by the Voting Rights Act when voting for President and Vice President,” the lawsuit reads. 

By breathing new life into relatively dormant VRA provisions, these lawsuits could positively impact thousands of voters.

With all of these new lawsuits still in their infancy, it remains to be seen whether courts will embrace pro-voting efforts to utilize the full breadth of the VRA’s protections. Given that many other states impose absentee ballot witness rules, durational residency requirements and premature absentee ballot application deadlines, favorable rulings in these lawsuits could have reverberating implications for large swaths of voters across the country. Regardless of their final outcomes, the new cases highlight the untapped potential of voting rights provisions that have rarely been tested in court, despite being on the books for over 50 years.