One of the worst days of my tenure in the Obama administration was June 25, 2013 — the day the U.S. Supreme Court struck down the heart and soul of the Voting Rights Act in Shelby County v. Holder.
Before the Shelby decision, states and subdivisions of states with a history of discriminatory voting practices had to get any change to their voting laws pre-approved by the Justice Department or formally permitted by a court — a process known as “preclearance.” It didn’t matter whether the change was as big as a voter ID law or as small as a local polling location — it had to go through preclearance. This requirement was a lynchpin of the Voting Rights Act since its passage in 1965. A key aspect of preclearance was that covered states had the burden of demonstrating that the proposed changes did not abridge the right to vote. Thus, the preclearance requirement was an important deterrent to state voter disenfranchisement efforts. And following its enactment, hundreds of thousands of proposed changes in covered jurisdictions were submitted for review over a period of decades.
As the head of the DOJ Civil Rights Division from 2009 to 2013, I found this process critical to fighting voter suppression and ensuring meaningful access to the ballot box. For example, when Texas passed a pernicious voter ID law in 2011, it needed official clearance in Washington before the law could go into effect. We objected to the law on the grounds that the requirement reduced the voting rights of minority voters. Texas filed suit in federal court in Washington, D.C., and a three-judge panel upheld our finding that the law would have the effect, if implemented, of diminishing minority voters’ rights. In another Texas case, local officials were going to move a polling place from a school to a location that was once a notorious meeting place of the Ku Klux Klan. It should come as no surprise that a sizable number of voters using that polling location were African American.
The change was specifically designed to intimidate and suppress communities of color. But thanks to the preclearance requirement, we were able to stop it.
All of that went out the window in 2013. A narrow 5-4 Court majority concluded that the law contained an outdated and unconstitutional formula to determine which jurisdictions are covered by the preclearance requirement. In a baffling opinion, the Court majority found that “things had changed dramatically” since passage of the Voting Rights Act. “Coverage today is based on decades-old data and eradicated practices,” wrote Chief Justice Roberts.
I wish discriminatory voting practices were a thing of the past. Sadly, they are not, and the late Justice Ginsburg noted as much in her dissent, comparing the majority’s reasoning to “throwing away your umbrella in a rainstorm because you are not getting wet.” Suffice to say, the majority opinion has not aged well.
In the nearly eight years since the Shelby decision, Republicans have used this new opening to viciously and relentlessly attack the voting rights of communities of color. From North Carolina and Arizona to Ohio, Wisconsin, and yes, our friends in Texas, we have witnessed a voter suppression renaissance.
And now that Democrats have flipped two Senate seats in Georgia — a state once covered by preclearance — Georgia Republicans are responding to their loss with more voter suppression tactics that could’ve been stopped before the VRA’s gutting in 2013.
That’s why I made voter protection central to my tenure as DNC chair. And that’s why it’s vital for Congress to restore the preclearance provision by passing the John Lewis Voting Rights Act and the For the People Act. It is important to remember that the Court did not strike down the preclearance requirement itself, and invited Congress to update the coverage formula.
This should not be a partisan issue. Each party should agree that our democracy is stronger when more people can make their voices heard, not fewer. In fact, as recently as 2006, the VRA was reauthorized unanimously. Not a single Republican senator voted against reauthorization, and only a handful opposed it in the House. And one of the VRA’s biggest champions was none other than recently retired Republican Rep. Jim Sensenbrenner. The party of Lincoln was once the party of civil rights. Now it’s the party trying to take them away.
We can’t let that happen. Not only do we need to pass both of these critical bills, but we also need to confirm President Biden’s civil rights appointments at the DOJ. I have the privilege of knowing his nominee for Associate Attorney General, Vanita Gupta. She’s a brilliant leader and lawyer with a wealth of experience that will serve her well in the department. As is Kristen Clarke, who has been nominated to serve in my old role as head of the Civil Rights Division.
Kristen is a voting rights veteran and a fierce defender of the ballot. Both of them will play critical roles in the coming years as we beat back voter suppression and make sure our democracy works better for all Americans. They should be confirmed without delay.
Make no mistake: GOP-led states are trying to turn the clock back on voting rights, and we need bold and immediate action to stop them. The right to vote is the right that protects all others. It’s the foundation of our democracy. We need to preserve it for future elections and future generations by passing the John Lewis Voting Rights Act and the For the People Act and confirming Joe Biden’s appointments.
Tom Perez led the Democratic National Committee as Chair from February 2017 until January 2021 and previously served as the Assistant Attorney General for Civil Rights and United States Secretary of Labor under the Obama Administration.