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Kristen Clarke

Assistant Attorney General For Civil Rights U.S. Department of Justice

The enactment of the Civil Rights Act of 1964 marked a seminal moment for our nation. It is a bedrock law that remains central to modern day civil rights and racial justice efforts. Dr. Martin Luther King Jr. described it as a “second emancipation.” President Lyndon Johnson, in signing the law, hailed its historic impact. “[T]hose who are equal before God,” he proclaimed, “shall now also be equal in the polling booths, in the classrooms, in the factories, and in hotels, restaurants, movie theaters, and other places that provide service to the public.”  

In banning segregation based on race, religion, or national origin at all places of public accommodation and employment, the Act dismantled the legal architecture of Jim Crow. It also took opening steps toward restoring the franchise so long denied to Black people in the South—restricting discriminatory use of literacy tests and barring exclusion from voting based on requirements not material to voters’ qualifications. In addition, the 1964 Civil Rights Act laid the groundwork for subsequent landmark reforms like the Voting Rights Act of 1965 (VRA), the Civil Rights Act of 1968, including the Fair Housing Act, and other laws that followed, buttressing civil rights enforcement efforts, punishing hate crimes, and prohibiting discrimination based on disability, gender, sexual orientation, and other attributes.  

Of all these advances, the efforts to protect the right to vote were, and remain, critical to achieving equality and freedom. Voting is the right from which all others flow. Dr. Martin Luther King, Jr. cautioned that the “denial of this sacred right is a tragic betrayal of the highest mandates of our democratic tradition.” John Lewis declared that the vote is “the most powerful non-violent tool we have in a democratic society, and we must use it.”  

As the violent events at the Edmund Pettus Bridge on Bloody Sunday in March 1965 laid bare, the voting reforms in the 1964 Act, while important, were insufficient to overcome the resolute Southern obstruction of Black political participation. To surmount these barriers, Congress passed the VRA in 1965. It gave the Justice Department powerful tools to counter discrimination in voting.  

A central piece of the VRA was Section 5, requiring jurisdictions with a history of discrimination in voting to obtain pre-clearance from the Justice Department or the U.S. District Court for the District of Columbia before implementing voting changes. For more than 45 years, the Justice Department exercised that authority to prevent a multitude of discriminatory provisions from going into effect. 

However, that advance scrutiny essentially ended in 2013 when the Supreme Court in Shelby County v. Holder declared Section 4(b) of the VRA unconstitutional. That provision supplied the formula to identify the jurisdictions covered under Section 5. 

Striking down Section 4(b) gutted Section 5, releasing all jurisdictions from coverage, freeing states and localities to adopt discriminatory voting laws without federal preclearance, and opening the floodgates to voter suppression. The Justice Department could only challenge these measures on a case-by-case basis, often through lengthy, complicated, and complex proceedings. As noted in recent testimony, it remains critical that Congress restore the Voting Rights Act in response to the Shelby County ruling.

Capitalizing on the court-mandated opportunity that Shelby County afforded, states rushed to implement discriminatory election changes that the Justice Department almost certainly would not have precleared. On the very day the Court issued Shelby County, Texas officials announced a discriminatory and burdensome photo identification law that had been previously blocked by Section 5. The very next day, the Chairman of the North Carolina Senate Rules Committee publicly stated that the Legislature would move forward with an omnibus law imposing multiple voting restrictions. Only after years of litigation—years when this discrimination burdened Black voters and other voters of color—did a Court of Appeals find that North Carolina had targeted Black voters “with almost surgical precision.”   

The equality in the polling booth that President Johnson predicted in 1964 thus has not yet been fully achieved. Turnout among voters of color has consistently lagged behind that of Whites. To be sure, in key areas, the number of people of color who voted reached an all-time high in the 2020 elections, but turnout still was 12.5 percent less than that of Whites. Nonetheless, this surge in voter turnout was followed by a surge in restrictive voting legislation. 

According to the Brennan Center, at least 19 states passed 34 laws in 2021 restricting access to voting. The trend continued in 2022, with eight states enacting 11 new restrictive laws. And in 2023, at least 14 states adopted 17 laws limiting access to the polls. 

Many of these laws disproportionately affect Black voters and other communities of color.  

The Justice Department has vigorously challenged the new wave of discrimination. The Civil Rights Division sued Georgia on the ground that its legislation intentionally discriminated against Black and AAPI voters. It brought actions against Texas and Arizona. And it filed briefs in support of claims brought by private parties across the country.

Some of the Department’s voting suits have invoked the Civil Rights Act of 1964. For example, the challenge to Texas’s law targets a provision disqualifying mail ballots unless they contain identification numbers that perfectly match the state’s records. A voter who uses a different type of ID on one of the forms makes a clerical error or effects some other trivial, inadvertent variation and cannot vote by mail—a method preferentially used by voters of color. A district court enjoined this portion of Senate Bill 1. 

The U.S. Court of Appeals for the Fifth Circuit has stayed that ruling pending appeal.  

The Department also recently tried a case under the 1964 Act in Arizona, challenging several voter registration requirements in a 2022 law relating to proof of citizenship. In addition, the Department has filed statements of interest and amicus briefs in cases by private parties, which address the proper interpretation of the 1964 Act’s Materiality Provision prohibiting denial of the right to vote based on immaterial mistakes or omissions on voting documents.

The Division’s efforts to counter discrimination in voting also include a recent victory at trial in a Section 2 VRA challenge to a redistricting plan adopted by Galveston County, Texas. We are now litigating the County’s appeal of that ruling in the Fifth Circuit. 

In addition to the legislative infringements on access to the polling booth, the Division opposes concerted efforts in the courts to curtail the legal safeguards for voting rights further. Litigants in multiple ongoing voting rights cases have attacked the constitutionality of Section 2 of the VRA. We recently intervened to defend Section 2 in litigation challenging statewide redistricting plans in Georgia and Louisiana. Further, in the face of decades of contrary precedent, other litigants have argued—and persuaded one Court of Appeals—that private plaintiffs do not have a right of action under Title I of the Civil Rights Act or Sections 2 and 208 of the VRA. 

The Department’s work to protect access to the ballot box extends beyond the courtroom. Every election cycle, the Civil Rights Division conducts election monitoring in which civil-side Department attorneys and employees observe the voting process at polling places around the country. These efforts focus on election day problems implicating statutes the Department enforces, such as language barriers for limited English proficient voters, voter intimidation, polling site accessibility, and more. Last year, Department staff monitored polling places in Alaska, Mississippi, Rhode Island, and Virginia. We anticipate additional monitoring in 2024.  

The Department also enforces other important laws, such as the National Voter Registration Act, which requires that DMVs and other social service agencies integrate voter registration opportunities into the services they provide the public. We also work to ensure language access for certain limited English proficient voters and work to ensure that people with disabilities have access to the democratic process. In addition, the Department produces guidance and other public educational material on voting rights and engages on policy issues.

Our work to safeguard access to the ballot box matters now more than ever. We face a hostile landscape, contrived by determined defenders of discrimination and sustained by the inaction of those who fear reprisal or who cannot be shaken from indifference. 

The time for passivity, though, is past. Heroes of the civil rights movement—both heralded and unknown—suffered and bled and died to secure the right to vote. From John Lewis to Fannie Lou Hamer and from Medgar Evers to Ella Baker and Whitney M. Young – their legacies are under assault. 

The Civil Rights Division will not forsake their sacrifices by retreating from the fight. We will honor this sacred trust. We will continue to carry out our work, inspired by their sacrifices and focused on ensuring that every eligible American has a voice in our democracy today.

As we move into 2024, I am issuing a call to action. We need you to call out voting discrimination and voter suppression in your communities. 

We need you to protest restrictive legislation. We need you not only to seize the power of your vote but also to vote up and down the ballot and vote during elections at the local, state, and federal levels. And we need you to help others exercise this precious right.

If you stand up for the right to vote, know that we are standing right there with you. I have every confidence that together, we can achieve the gold standard – a democracy in which every ballot is counted and where every voice is heard.   

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