Viewpoint Wiki - All Viewpoints, No Gatekeepers

This article traces the legislative origins, passage, and subsequent legal and political development of the Voting Rights Act of 1965. For broader context see Voting Rights Act of 1965, for areas of scholarly and legal agreement see Voting Rights Act of 1965 - Legal Consensus, and for contested interpretive questions see voting-rights-act-of-1965-viewpoint-section-2-scope-viewpoint-debate.

Following the ratification of the Fifteenth Amendment in 1870, which prohibited denial of the franchise on account of race, many Southern states enacted a layered system of restrictions that substantially curtailed black voting. Poll taxes, literacy tests administered selectively, grandfather clauses, white primaries, and the threat or use of violence operated together to suppress voter registration across the former Confederacy. By the mid-twentieth century, black registration rates in several Deep South states were well below ten percent despite black residents constituting large portions of the adult population. In Mississippi in 1964, for example, fewer than seven percent of eligible black citizens were registered.(1)

Federal efforts in the intervening decades were limited. The Civil Rights Acts of 1957 and 1960 authorized the Department of Justice to pursue voting discrimination cases in federal court but provided no structural remedy for the underlying registration apparatus. The Civil Rights Act of 1964 strengthened some procedural protections but likewise did not mandate affirmative federal oversight of state election administration.(2)

The Student Nonviolent Coordinating Committee (SNCC) and the Southern Christian Leadership Conference (SCLC) undertook sustained voter registration campaigns across the South during the early 1960s. Freedom Summer in 1964 brought hundreds of volunteers to Mississippi to assist registration drives, drawing national press attention to violent resistance by local authorities and private citizens.(3)

In early 1965, the SCLC, led by Martin Luther King Jr., selected Selma, Alabama, as the focal point of a new direct-action campaign. Dallas County, where Selma is located, had approximately 15,000 black residents of voting age but fewer than 335 registered black voters as of 1965.(4) Beginning in January, demonstrators assembled daily at the Dallas County courthouse and were repeatedly turned away or arrested by Sheriff James Clark and his deputies.

On March 7, 1965-subsequently called Bloody Sunday-approximately 600 marchers set out from Selma toward Montgomery along U.S. Route 80. At the Edmund Pettus Bridge, state troopers and sheriff's deputies under the command of Major John Cloud ordered the marchers to disperse and, when they did not immediately comply, advanced on the crowd with clubs and tear gas. Footage of the assault was broadcast on national television that evening, interrupting a prime-time broadcast of Judgment at Nuremberg.(5)

A second march attempt on March 9 turned back after King led protesters to the bridge and then withdrew, a decision that generated internal tension within the movement. Federal District Judge Frank Johnson lifted an injunction against the march on March 17, and a third march departed Selma on March 21 under the protection of federalized National Guard troops. The marchers reached the Alabama State Capitol in Montgomery on March 25, where King addressed a crowd of approximately 25,000 people.(6)

President Lyndon B. Johnson addressed a joint session of Congress on March 15, 1965, eight days after Bloody Sunday. In that address he declared, “We shall overcome,” adopting the phrase associated with the civil rights movement, and called on Congress to pass voting rights legislation.(7)

The administration's bill was drafted primarily by Justice Department attorneys Nicholas Katzenbach and Burke Marshall. The legislation employed a “coverage formula” in Section 4 to identify jurisdictions with historically low voter registration or turnout and a history of using tests or devices as conditions of registration. Section 5 required covered jurisdictions to obtain “preclearance” from the Attorney General or the U.S. District Court for the District of Columbia before implementing any change in voting law or procedure. Section 10 directed the Attorney General to challenge poll taxes in state elections; the poll tax in federal elections had already been eliminated by the Twenty-Fourth Amendment (1964).(8)

The bill encountered opposition in the Senate from Southern Democrats, led by Senator Richard Russell of Georgia, who organized a filibuster. Senate Majority Leader Mike Mansfield filed a cloture petition; cloture was invoked on May 25, 1965, by a vote of 70 to 30-the first successful cloture vote on a civil rights measure in Senate history.(9) The Senate passed the bill 77-19 on May 26. The House passed an amended version 333-85 on July 9. A conference committee resolved differences between the chambers, and the final bill passed the Senate 79-18 on August 4 and the House 328-74 on August 3.(10)

President Johnson signed the Voting Rights Act into law on August 6, 1965, in a ceremony in the President's Room of the United States Capitol, the same room where Abraham Lincoln had signed a bill freeing enslaved people pressed into Confederate service in 1861.(11)

The Department of Justice dispatched federal examiners to covered counties beginning in August 1965. Within months, hundreds of thousands of black voters were registered across the South. In Selma's Dallas County, black voter registration rose from approximately 335 to over 8,000 within a year of the Act's passage.(12)

The Act was challenged almost immediately. South Carolina filed suit in the Supreme Court arguing that the preclearance requirement exceeded congressional authority under the Fifteenth Amendment. In South Carolina v. Katzenbach (1966), the Court upheld the Act by an 8-1 vote, holding that Congress had broad remedial power under Section 2 of the Fifteenth Amendment to combat the “insidious and pervasive evil” of racial discrimination in voting.(13)

In Katzenbach v. Morgan (1966), the Court upheld Section 4(e), which prohibited literacy tests as a condition of voting for persons educated in Puerto Rican schools, further affirming broad congressional enforcement power.(14)

The Act was reauthorized for five years in 1970. Congress also used the reauthorization to extend the ban on literacy tests nationwide and to lower the voting age to eighteen-a provision struck down as applied to state elections by the Supreme Court in Oregon v. Mitchell (1970), prompting rapid passage of the Twenty-Sixth Amendment (1971).(15)

The 1975 reauthorization extended the Act for seven years and added new protections for “language minority” groups-defined to include persons of Spanish heritage, American Indians, Asian Americans, and Alaskan Natives. Section 203 required covered jurisdictions with significant language minority populations to provide bilingual voting materials.(16)

The 1982 reauthorization was the most contentious to that point. Congress extended Section 5 preclearance for twenty-five years and, critically, amended Section 2 to adopt a “results” standard following the Supreme Court's decision in Mobile v. Bolden (1980), which had interpreted the original Section 2 to require proof of discriminatory intent. The amended Section 2 prohibited any voting practice that “results in a denial or abridgement” of the right to vote on account of race or color, shifting the standard from intent to effect.(17)

In Thornburg v. Gingles (1986), the Supreme Court established a three-part test for evaluating Section 2 vote dilution claims involving multimember districts, providing the framework that governed subsequent redistricting litigation.(18)

The 1992 reauthorization extended Section 203 language assistance requirements and retained existing preclearance provisions.(19)

In Shaw v. Reno (1993) and subsequent cases, the Supreme Court held that race-conscious redistricting could constitute an equal protection violation if race was the predominant factor in drawing district lines, introducing tension between Section 2 compliance efforts and the Equal Protection Clause.(20)

In Reno v. Bossier Parish School Board (2000) and Georgia v. Ashcroft (2003), the Court interpreted the Section 5 preclearance standard in ways that Congress found insufficiently protective; both decisions were effectively overruled by the 2006 reauthorization.(21)

The 2006 reauthorization extended Section 5 for twenty-five years by votes of 390-33 in the House and 98-0 in the Senate. Congress compiled an extensive legislative record of ongoing voting discrimination in covered jurisdictions to support the constitutional basis for extension.(22)

In Northwest Austin Municipal Utility District No. 1 v. Holder (2009), the Supreme Court ruled 8-1 that the utility district was eligible to seek a “bailout” from coverage and declined to rule on the Act's constitutionality, but Chief Justice John Roberts's majority opinion raised pointed questions about whether the coverage formula remained justified by current conditions.(23)

Shelby County, Alabama, filed suit in 2010 challenging the constitutionality of Sections 4 and 5. In Shelby County v. Holder (2013), the Supreme Court held 5-4 that Section 4(b)'s coverage formula was unconstitutional as applied, because it relied on data that was forty years old and did not reflect current conditions. Without a valid coverage formula, Section 5 preclearance became inoperative.(24)

Within hours of the decision, several states that had previously been covered announced or implemented changes to voting laws that would have required preclearance. Congress did not pass new legislation to update the coverage formula in the years immediately following the decision.(25)

In Brnovich v. Democratic National Committee (2021), the Supreme Court addressed the scope of Section 2's results standard as applied to facially neutral voting regulations. The Court, in a 6-3 decision authored by Justice Samuel Alito, identified several factors relevant to Section 2 analysis and upheld two Arizona provisions-one restricting out-of-precinct ballot counting and one prohibiting third-party ballot collection.(26) The decision's implications for the breadth of Section 2 litigation remain actively disputed. See voting-rights-act-of-1965-viewpoint-section-2-scope-viewpoint-debate.

Some historians dispute whether the Johnson administration's decision to center federal action on dramatic televised confrontations, rather than on earlier sustained registration efforts, reflected a strategic choice by the administration or was primarily driven by events initiated by movement organizations themselves.(27) See voting-rights-act-of-1965-controversy-administration-movement-agency-controversy.

Some legal scholars argue that the Court's decision in Shelby County was compelled by the Constitution's equal sovereignty principle; others argue that principle had no prior foundation in voting rights jurisprudence and was judicially invented to limit the Act. See voting-rights-act-of-1965-controversy-shelby-county-equal-sovereignty-controversy.

Whether Brnovich effectively narrowed Section 2 to the point of eliminating most results-based challenges to facially neutral laws, or instead supplied workable guidance consistent with Congress's 1982 intent, is contested among legal scholars and litigants. See voting-rights-act-of-1965-viewpoint-section-2-scope-viewpoint-debate.

(1) United States Commission on Civil Rights, Voting in Mississippi (Washington, D.C.: U.S. Government Printing Office, 1965), 7-9.

(2) Steven F. Lawson, Black Ballots: Voting Rights in the South, 1944-1969 (New York: Columbia University Press, 1976), 207-229.

(3) Doug McAdam, Freedom Summer (New York: Oxford University Press, 1988), 3-15.

(4) Charles E. Fager, Selma, 1965: The March That Changed the South (New York: Scribner, 1974), 5-6.

(5) David J. Garrow, Protest at Selma: Martin Luther King, Jr., and the Voting Rights Act of 1965 (New Haven: Yale University Press, 1978), 73-78.

(6) Garrow, Protest at Selma, 91-111; Taylor Branch, At Canaan's Edge: America in the King Years, 1965-68 (New York: Simon & Schuster, 2006), 131-173.

(7) Lyndon B. Johnson, “Special Message to the Congress: The American Promise,” March 15, 1965, Public Papers of the Presidents of the United States: Lyndon B. Johnson, 1965, vol. 1 (Washington, D.C.: U.S. Government Printing Office, 1966), 281-287.

(8) Gary May, Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy (New York: Basic Books, 2013), 87-102.

(9) Robert A. Caro, The Years of Lyndon Johnson: The Passage of Power (New York: Alfred A. Knopf, 2012), and Senate records, 89th Cong., 1st sess., Congressional Record 111 (May 25, 1965): 11,728.

(10) Congressional Record 111 (August 3-4, 1965): 19,462, 19,534.

(11) May, Bending Toward Justice, 152-155.

(12) Garrow, Protest at Selma, 181-182; U.S. Commission on Civil Rights, The Voting Rights Act: Ten Years After (Washington, D.C.: U.S. Government Printing Office, 1975), 43.

(13) South Carolina v. Katzenbach, 383 U.S. 301 (1966), 309.

(14) Katzenbach v. Morgan, 384 U.S. 641 (1966).

(15) Oregon v. Mitchell, 400 U.S. 112 (1970); Lawson, Black Ballots, 331-334.

(16) Chandler Davidson and Bernard Grofman, eds., Quiet Revolution in the South: The Impact of the Voting Rights Act, 1965-1990 (Princeton: Princeton University Press, 1994), 21-23.

(17) Abigail Thernstrom, Whose Votes Count? Affirmative Action and Minority Voting Rights (Cambridge: Harvard University Press, 1987), 75-112; Mobile v. Bolden, 446 U.S. 55 (1980).

(18) Thornburg v. Gingles, 478 U.S. 30 (1986).

(19) Davidson and Grofman, Quiet Revolution, 24.

(20) Shaw v. Reno, 509 U.S. 630 (1993).

(21) Reno v. Bossier Parish School Board, 528 U.S. 320 (2000); Georgia v. Ashcroft, 539 U.S. 461 (2003).

(22) H.R. 9, Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, Pub. L. 109-246, 120 Stat. 577; Congressional Record 152 (July 13, 2006): H5143.

(23) Northwest Austin Municipal Utility District No. 1 v. Holder, 557 U.S. 193 (2009).

(24) Shelby County v. Holder, 570 U.S. 529 (2013).

(25) Ari Berman, Give Us the Ballot: The Modern Struggle for Voting Rights in America (New York: Farrar, Straus and Giroux, 2015), 271-294.

(26) Brnovich v. Democratic National Committee, 594 U.S. 647 (2021).

(27) Garrow, Protest at Selma, 220-231; Branch, At Canaan's Edge, 48-53.