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Does The Voting Rights Act Have A 2nd Chance?

AILSA CHANG, HOST:

John Lewis broke one last barrier today in Washington. He became the first Black congressman to lie in state in the Capitol Rotunda. Lewis built a life centered on representation. He served in Congress for more than 30 years, and before that, he was a leader in the voting rights movement.

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JOHN LEWIS: To those who have said be patient and wait, we've long said that we cannot be patient. We do not want our freedom gradually, but we want to be free now.

CHANG: The Voting Rights Act passed in 1965. It was a signature victory in Lewis' decades-long struggle for voting rights. But in 2013 the Supreme Court essentially gutted a key enforcement mechanism under the law, and the future of the Voting Rights Act is still in question. Myrna Perez is director of the Voting Rights and Elections Program at the Brennan Center for Justice. She joins us now. Welcome.

MYRNA PEREZ: Thank you so much for having me.

CHANG: I guess I just want to start at the beginning, in 1965. Can you just explain what the Voting Rights Act specifically did when it passed? Like, how significant of a game-changer was it at the time?

PEREZ: The Voting Rights Act was a complete game-changer for electoral participation in this country. It banned literacy tests. It set forth a nationwide ability to challenge in court discriminatory voting practices. And importantly, it set up an administrative process that we call preclearance.

CHANG: Right. Preclearance - now, that is basically this requirement that states that had a history of discriminatory voting laws were required under the Voting Rights Act to get approval from the federal government before those states could change any voting rules. At least that was the requirement until the Supreme Court ruling in Shelby County v. Holder in 2013. Tell us what that Supreme Court decision did.

PEREZ: The Shelby County decision gutted the heart of the Voting Rights Act by mothballing preclearance. The Shelby County decision made it such that those jurisdictions which were localities and states that had to abide by the rules of preclearance no longer had to do so. So we had preclearance on the books, but it wasn't operating anywhere. So would-be discriminators had a major barrier to their shenanigans lifted.

CHANG: And let me play for you a piece of tape from Congressman Lewis responding to the ruling in Shelby County at the time.

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LEWIS: Today the Supreme Court stuck a dagger in the heart of the Voting Rights Act of 1965. They're saying in effect that history cannot repeat itself, but I say come and walk in my shoes.

CHANG: And as you say, basically, a primary enforcement mechanism was eviscerated by this Supreme Court decision. What happened to the Voting Rights Act after that?

PEREZ: Well, the Voting Rights Act still exists, but it's missing its heart. It's missing preclearance. And as such, people like me who do civil rights litigation on behalf of voters around the country - we have fewer tools available to protect voters. That means the litigation takes longer. It's more expensive. And some wrongs go unchallenged because of the resources that become involved in litigating on a one-by-one basis. We also see problems of gamesmanship, where we'll go and successfully strike down a law in the courts and then they'll make a little tweak. And then we're stuck back in court again. This was all stuff that the preclearance provision took care of because it changed who had the burden of proof in showing that an election change wasn't going to make minority voters worse off.

CHANG: Now, in 2013 the Supreme Court did leave a door open for Congress to step in and try to fix this loophole that you're now describing in the Voting Rights Act. Where did those efforts go in Congress?

PEREZ: Well, the House passed a new and restored Voting Rights Act, and it was recently reintroduced in the Senate. But it's going to take a lot of pressure from the public to tell Congress that we're serious. We want a new and restored Voting Rights Act.

CHANG: I want to play for you one last cut of tape from Congressman Lewis. This is from 2018.

(SOUNDBITE OF ARCHIVED RECORDING)

LEWIS: Before the Voting Rights Act of 1965 was passed, some people had to count the number of bubbles on a bar of soap, the number of jellybeans in a jar. And all across America today, when people go out to attempt to vote, they stand in long, immovable lines. That's not right, it's not fair, and it's not just. We can do better, and we must do better.

CHANG: Do you think that John Lewis' death might lead to a renewed push to examine who gets to vote in this country?

PEREZ: I certainly hope so. His life's work was about making sure that this country honored its promise that when people stepped into the ballot box, they would be free from racial discrimination in voting. And his life's work will be undone if we don't act quickly because there are forces in this country that want to make it such that some people can participate and some people can't.

CHANG: Myrna Perez is the director of the Voting Rights and Elections Program at the Brennan Center for Justice. She joined us via Skype.

Thank you very much for joining us today.

PEREZ: Thank you so much for having me. Transcript provided by NPR, Copyright NPR.