9.41 Myths about the Voting Rights Act

Professor Robert M. Hardaway of the Sturm College of Law at the University of Denver and five other opponents of the National Popular Vote Compact issued a written statement at a Colorado legislative committee hearing in 2007, arguing that the Compact would:

“diminish the political influence of racial and ethnic minorities in the United States in presidential elections.”[1036]

In 2008, David Gringer argued that the National Popular Vote Compact would:

“run afoul of sections 2 and 5 of the Voting Rights Act—as either minority vote dilution or retrogression in the ability of minority voters to elect the candidate of their choice.”[1037]

In his 2016 book, Mark Weston warned:

“Lawsuits claiming that the National Popular Vote system violates the 1965 Voting Rights Act would also be likely. In California, for example, about 30% of the voters are Latino.”[1038]

In 2024, the Maine Policy Institute (a conservative think tank) claimed:

“The National Popular Vote Compact could potentially be a civil rights violation. The Voting Rights Act of 1965’s second section has been interpreted by the Supreme Court to mean that states cannot create an electoral system that reduces the electoral impact of the state’s minority voters (Shaw v. Reno).”[1039]

The National Popular Vote Compact would not deny or abridge the right to vote—of minorities or anyone else.

On the contrary, it would make every person’s vote equal—consistent with the goal of the Voting Rights Act.

The National Popular Vote Compact received pre-clearance from the U.S. Department of Justice under section 5 of the Voting Rights Act on January 13, 2012. The pre-clearance was issued while the California legislature was considering the Compact.[1040]

The National Popular Vote Compact has been sponsored by hundreds of minority state legislators and endorsed by organizations such as:

• the National Black Caucus of State Legislators in 2006[1041]
• the National Latino Congreso in 2006[1042]
• the NAACP in 2008[1043]
• Mi Familia Vota in 2020.[1044]

In endorsing the National Popular Vote Compact, the NAACP cited the fact that it supported “the ideal of one person, one vote.”

The purpose of the Voting Rights Act is to guarantee voting equality (particularly in relation to racial minorities who historically suffered discrimination in certain states or parts of states).

Section 2 of the Act prohibits the denial or abridgment of the right to vote.

Section 5 requires certain states (that historically violated the right to vote) to obtain advance approval for proposed changes in their state election laws to ensure that they would not have a discriminatory purpose or effect.

The advance approval can be obtained in two ways:

• a favorable declaratory judgment from the U.S. District Court for the District of Columbia, or
• pre-clearance by the U.S. Department of Justice (the more common path).

Opponents of the National Popular Vote Compact, such as Gringer, often quote from various court cases involving disputed changes in voting methods for multi-member legislative bodies, such as city councils and county governing boards.[1045] However, these cases do not bear on elections to fill a single office such as the presidency.

In Butts v. City of New York Dept. of Housing Preservation and Development, the U.S. Court of Appeals for the Second Circuit considered whether the Voting Rights Act applies to a run-off election for the single office of Mayor, Council President, or City Comptroller in a New York City primary election. The court opined:

“We cannot … take the concept of a class’s impaired opportunity for equal representation and uncritically transfer it from the context of elections for multi-member bodies to that of elections for single-member officers.”[1046] [Emphasis added]

The court also stated:

“There is no such thing as a ‘share’ of a single member office.” [Emphasis added]

It then added:

“It suffices to rule in this case that a run-off election requirement in such an election does not deny any class an opportunity for equal representation and therefore cannot violate the Act.”

In Dillard v. Crenshaw County, the U.S. Court of Appeals for the Eleventh Circuit considered whether the at-large, elected chair of the Crenshaw County Commission in Alabama is a single-member office. The office’s duties are primarily administrative and executive, but also include presiding over meetings of the Commissioners and voting to break a tie. The court stated that it was unsatisfied that:

“The chairperson will be sufficiently uninfluential in the activities initiated and in the decisions made by the commission proper to be evaluated as a single-member office.”[1047]

The case was remanded to the U.S. District Court for either “a reaffirmation of the rotating chairperson system” or approval of an alternative proposal preserving “the elected integrity of the body of associate commissioners.”

In 1989, in Southern Leadership Conference v. Siegelman,[1048] the U.S. District Court for the Middle District of Alabama distinguished between election of a single judge to a one-judge court and the election of multiple judges to a circuit court or judicial court. Pre-clearance was required when more than one judge was to be elected, but not when only one judge was to be elected.

Although the National Popular Vote Compact received preclearance from the U.S. Department of Justice in 2012 under section 5 of the Voting Rights Act, the requirement that states obtain preclearance was significantly modified by the decision of the U.S. Supreme Court in 2013 in Shelby County v. Holder.[1049]

The U.S. Department of Justice described the effect of the Court’s decision in this case as follows:

“The United States Supreme Court held that it is unconstitutional to use the coverage formula in Section 4(b) of the Voting Rights Act to determine which jurisdictions are subject to the preclearance requirement of Section 5 of the Voting Rights Act, Shelby County v. Holder, 133 S. Ct. 2612 (2013). The Supreme Court did not rule on the constitutionality of Section 5 itself. The effect of the Shelby County decision is that the jurisdictions identified by the coverage formula in Section 4(b) no longer need to seek preclearance for the new voting changes, unless they are covered by a separate court order entered under Section 3(c) of the Voting Rights Act.”[1050]

Footnotes