In 1965, Congress passed the Voting Rights Act to guarantee all Americans the right to vote. So why does it remain such a challenge for people to vote today? Section 5 of the Voting Rights Act prohibited “covered jurisdictions,” namely states and counties with a history of racial discrimination, from implementing voting modifications until the federal government could “preclear” their proposed changes. This was to ensure that such changes did not constitute racial, ethnic, or minority-based voter discrimination.
Although this provision was originally set to expire after five years, Congress continued to recognize the provision’s importance by renewing it several times, most recently for 25 years in 2006. However, in 2013, the Supreme Court ruled in Shelby County v. Holder that Section 4(b) of the Voting Rights Act, which determined the jurisdictions subject to preclearance through a formula, was unconstitutional.
While Section 5 of the Voting Rights Act remains intact, its primary mechanism for determining covered jurisdictions was obliterated. Before Shelby County, 9 states, 56 counties, and 2 townships were subject to Section 5 preclearance based on Section 4(b)’s formula. Today, only 2 states, 13 counties (including Los Angeles County), 1 city, and 2 school districts are subject to Section 5 preclearance.
The gutting of this provision of the Voting Rights Act is an underlying cause for many of the obstacles Americans face on Election Day, as previously covered jurisdictions can now make changes to election law without the oversight of the federal government. With election season on the horizon, it is crucial to be aware of the challenges that citizens across the country face when voting.
Voter ID Laws
Many politicians and Americans believe that Voter ID Laws prevent election fraud, and thus are necessary for our election process. However, voter ID laws are ineffective in terms of preventing voter fraud. The goal of these photo ID laws is to prevent in-person voter impersonation, which is an extremely rare form of voter fraud. But according to the Brennan Center for Justice, only 0.00004 percent of all ballots cast were in-person fraudulent votes. In the 2020 Election, from a total of 250,000,000 absentee ballots, there were only 193 instances of voter fraud. The League of Women Voters simply puts the rarity of voter fraud: “A person is more likely to be struck by lightning than to commit voter fraud.” Voter ID Laws have been proven to be seldom at stopping voter fraud, but on top of that, they promote voter suppression.
A study conducted by the Brennan Center for Justice shows that Voter ID Laws are suppressing the vote for communities of color. As the number of states that have adopted these voting laws has increased, the racial turnout gap among voters has grown.
Another study concluded that strict voter ID restrictions stop a disproportionate amount of minority voters, who would otherwise be “willing registered voters,” from voting. But why do voter ID laws disproportionately affect voters of color?
Well, photo IDs aren’t as common as you might think: 18 percent of voters over the age of 65, 25 percent of Black voters, 16 percent of Latino voters, and 15 percent of low-income citizens do not have an acceptable photo ID. While these people are eligible to vote as they are American citizens, they can be denied access to the polls due to their lack of a photo ID. Many Americans who lack the financial resources, availability, or physical capability to get the required identification may not be able to cast a ballot on Election Day if they live in a jurisdiction with strict voter ID laws.
Similar to Voter ID Laws, Signature Match Laws disproportionately impact voters that already experience challenges on Election Day. Some states deny people’s right to vote if the signature on their ballot doesn’t exactly match their voter registration signature.
Further, states often do not inform voters when their ballot has been declined. The signatures of elderly people or people living with disabilities often look different from when they first registered to vote. Moreover, people who are transgender and adopt a new name may have a different signature from when they registered to vote. Getting a legal name change can be difficult for people because of financial and societal barriers, so when they sign their ballot with their new name their vote may be canceled as the signature will show a name that doesn’t match their legal records. Further, experts have found that people’s signatures change over time, regardless of their physical abilities or age.
The issue of signature matching also follows a common theme with most voting process practices of disproportionately affecting voters of color. For instance, absentee votes from Black voters in Washington State were rejected four times as frequently as those from white voters in the 2020 election due to signature discrepancies. According to the New York Times, one out of every forty mail-in ballots from black voters was invalidated because of faulty signatures during that election. The state of Washington discovered that voters who identified as Hispanic, Asian, Pacific Islander and Native American had higher rejection percentages for their absentee ballots as well.
Only 23 states offer automatic voter registration, which registers every citizen to vote as soon as they come into contact with a state agency. Automatic voter registration lowers the barriers to voting and makes the process more streamlined. People who live in states without automatic voter registration must register to cast their ballots. According to data from the US Census Bureau and the Pew Research Center, nearly 73 percent of voting-age Americans were registered to vote in the 2020 election, meaning that over a quarter of American citizens who were eligible to vote were not registered. The enormous disparity between the turnout of registered voters (94.1 percent) and those of voting age (62.8 percent) in the 2020 election illustrates that registering to vote can be a hurdle for Americans living in states without automatic registration, thus hampering voter turnout. Further, data from states that have implemented automatic voter registration demonstrate that eliminating this barrier to entry can boost turnout, as new voters registered through automatic voter registration before the 2018 midterms turned out at rates between 42 and 54 percent during that election (depending on the state) compared to the 2014 midterms, which saw the lowest nationwide voter turnout (36.4 percent) in over 70 years. Automatic voter registration, which was first enacted in 2015 in Oregon and California, was a primary reason for the 14 percent jump in voter turnout during the 2018 midterms (50.3 percent).
Many Americans are unable to cast their votes on Election Day due to physical limitations or schedule conflicts such as work or childcare. Early voting enables them to participate in democracy regardless of these circumstances. Unfortunately, residents of Alabama and New Hampshire are not ever able to cast their ballots before Election Day, as these states lack both early in-person and absentee ballot voting.
Early voting also enables election officials to identify problems with voting equipment or the vote-counting process before Election Day and gives voters with incomplete or expired registrations time to rectify these issues.
Election administration presents a significant obstacle on Election Day. Some of the most noticeable challenges that polling stations encounter each election include a dearth of equipment—such as voting machines—as well as trained staff. Other times, states may have unclear ballot language or design flaws that confuse voters. Inadvertent ballot flaws that make it more difficult for people to vote include elections placed in the same column as the general instructions of the ballot, candidates running for the same office in different columns or on different pages, multiple elections on the same electronic ballot, and sample ballots that differ from actual ones.
Unfortunately, election administration problems disproportionately impact areas and districts with large populations of Black and Hispanic voters. A Brennan Center for Justice study from the 2018 midterm elections discovered that Black and Hispanic voters experienced longer wait times—45 percent longer on average—at the polls than white voters. The study demonstrates that counties with a greater minority population received fewer electoral resources per voter in 2018 than counties with a greater white population. Majority minority counties on average had 80 voters per poll staffer and 550 voters per polling place, whereas majority white counties had 63 voters per poll staffer and only 390 voters per polling place. Also, the study revealed that there were instances of voter roll purges—the removal of names from voter registration lists—during the 2018 election, primarily in Georgia.
These purges targeted predominantly Black communities and resulted in citizens not being able to vote because they were no longer registered. Whether socioeconomic factors, access to polling places, or underinvestment in administration resources, election administration in Black and Hispanic communities is inconvenient and unfair. While there have been initiatives to enhance election administration, several Republican lawmakers recently proposed legislation that would outlaw private funding for election management and bar non-profits from supporting state election administration. On Election Day, such rules would only exacerbate the problem.
These Election Day challenges that make it harder for Americans to vote can stem from insufficient legislation, but an underlying aspect of voter suppression in our country goes beyond the law. Systemic racism still exists in our nation. While this is a very unfortunate reality, it cannot go unnoticed.
Long Lines at the Polls
In terms of simply casting ballots, Black voters in the United States have to wait in considerably longer lines than white voters. The Brennan Center found that in the 2018 midterm election, Black voters waited 45 percent longer in polling lines than white voters. Seven percent of Black voters waited over 30 minutes in the 2018 Election to cast their ballots, surpassing the acceptable threshold—30 minutes—for wait times set by the Presidential Commission on Election Administration. On the other hand, only 4 percent of white voters had to wait more than 30 minutes.
Precincts with 10 percent or fewer non-white voters experienced an average wait time of 5 minutes, according to data from the 2018 midterm elections, but precincts with over 90 percent non-white voters experienced an average wait time of 32 minutes. Voters in precincts with a Black population of 90 percent or higher waited in line more than 6 times as long as those in precincts with a 90 percent or higher white population, according to the Bipartisan Policy Center. Using data from the 2016 election, a different study discovered that voters in Black communities faced lengthier wait times to cast their ballots—roughly 29 percent longer—and were 74 percent more likely than white voters to spend more than 30 minutes in line. Many Black voters were forced to abandon their voting centers, effectively forfeiting their votes, as a result of these long lines.
The Voting Rights Act Revisited
The electoral process in our nation is systematically biased against Black voters, making it unquestionably harder for them to cast ballots than for white Americans. Without Section 5 of the Voting Rights Act in effect for jurisdictions with histories of discrimination, legislators from around the nation have recently enacted voting restrictions that perpetuate racial biases in our democratic system. As supporters of free and fair elections, we must implore Congress to override these systemic voting restrictions.
Contact your local, state, and federal representatives to overturn systemically racist provisions, utilize social media to get the message across, support legal actions, and vote on propositions that will eliminate voter suppression for all backgrounds. The most effective way to bring about change in our society is through advocacy, so those who want to end systemic racism in our electoral system must have the loudest and most influential voices.
Andrew Lubliner is a JCJ Summer Legislative Fellow and a rising senior at Brentwood School in Los Angeles.