Senate hearing follows appearances by Tolson before House of Representatives committees
On the heels of appearances this summer before two Congressional committees, USC Gould School of Law constitutional law expert Franita Tolson testified Sept. 22 before the U.S. Senate Judiciary Committee – Subcommittee on The Constitution, at a hearing on “Restoring the Voting Rights Act: Combating Discriminatory Abuses.”
Her presentation on Capitol Hill focused on Congress’ broad authority to enact the practice-based preclearance provision of the John Lewis Voting Rights Advancement Act of 2021, or VRAA. The preclearance provision, part of the original Voting Rights Act of 1965, required nine states and certain localities in six other states to obtain preclearance from the Department of Justice or U.S. District Court before making any changes in voting procedures. In 2013, the U.S. Supreme Court’s ruling in Shelby County v. Holder struck down the provision, a move that critics say has given states the green light to disenfranchise voters of color.
Tolson’s testimony described how Congress retains substantial authority under the Fourteenth and Fifteenth Amendments, as well as the Elections Clause, to pass the practice-based coverage provision of the VRAA despite the Shelby County decision. The VRAA, according to Tolson, addresses the Supreme Court’s concerns in Shelby County v. Holder by narrowing the scope of coverage to jurisdictions with substantial minority populations, and focusing only on specific practices that jurisdictions use – and have used – to undermine the political influence of these groups.
“The practice-based coverage provision isolates those practices that states have historically used to abridge or deny the right to vote, and it does so without singling out any particular jurisdiction or geographic area,” Tolson said. “Its structure not only complies with the equal sovereignty principle that was central to the invalidation of Section 4(b) in Shelby County, but this proposed legislation also addresses the steadily increasing threats to the right to vote that necessitate federal action, particularly as the number of states seeking to make voting harder grows.”
Tolson noted that the need for the VRAA became more apparent after the COVID-19 pandemic exacerbated existing inequities in the voting system with numerous closures of polling places in low-income and minority communities. States also enacted new policies restricting absentee ballots that critics say will curb the participation of minority communities.
In addition, several states have introduced, or begun to implement, new voter identification bills or voter purge practices that are “ostensibly enacted under the auspices of addressing voter fraud, but for all practical purposes, burden the rights of minority voters,” Tolson testified, adding that more than 400 bills have been introduced in 49 states to restrict voting in various ways. “Effectively, this means that there is only one state in which legislators have not introduced restrictive voting measures, highlighting the need for federal intervention on this front,” she said.
“The hearing highlighted the need for an updated and modernized Voting Rights Act as minority communities face unprecedented threats to their right to vote,” she said. “States like Georgia and Texas have passed restrictive voting laws this year and, in a recent case, the Supreme Court narrowly interpreted a key provision of the Voting Rights Act. It is clear that Congress must act.”
In addition to her September 2021 testimony before the Senate Judiciary Subcommittee on the Constitution, Tolson was also asked by the U.S. House Committee on House Administration to testify on the Elections Clause of Article I, Section 4 of the Constitution in July 2021. Later that month, the U.S. House Committee on the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties invited her to testify about Congress’ authority to enact practice-based preclearance systematizing federal oversight of any changes to certain voting rules.
Tolson’s appearances came as two voting bills, H.R. 1 and H.R. 4, advance in the House of Representatives. The bills in part expand voting rights, add more teeth to campaign finance laws and restore parts of the Voting Rights Act of 1965 that were struck down by the Shelby County v. Holder decision.
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