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Restore the VRA to protect county voters’ rights

Fair Counties NC calls on all North Carolina voters to tell your representatives in Washington that we need quick action to restore and strengthen the VRA. Without the VRA to fully protect our voting rights, we could be facing years of stormy voting, rigged maps, and voter suppression with no umbrella to protect us.

We are about to start the first statewide redistricting since 1960 without the powerful protections of the Voting Rights Act’s Section 5. This key provision, overturned by the US Supreme Court in 2013, required that the US Justice Department or federal district court preclear any change in election conditions with the potential to diminish minority voting rights. That included changes to county commission elections and district maps.

Preclearance applied to 40 counties in North Carolina, primarily in the East, based on specific tests spelled out in Section 4[1]. When the VRA was first adopted, preclearance was meant to remain in force for just five years. Congress repeatedly extended it, though, as evidence piled up that the voter suppression storm clouds were still looming above us.

Continued efforts to suppress minority voting power did not stop the Supreme Court from striking down Section 4 in 2013. In effect, the US Supreme Court ruled that “grey clouds are gonna clear up” and everyone should just “put on a happy face.” In their view, DOJ oversight of election rule changes was just not needed anymore.

In her dissent, Justice Ginsberg famously noted that, “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

That 2013 ruling left the VRA’s Section 2 in place, but its protection works entirely differently—and much more slowly. Section 5 reviews were rapid and flexible. They encouraged local jurisdictions to work with the DOJ to find reasonable compromises before bad practices had even been implemented.

By contrast, Section 2 cases must be heard by federal courts. They can be brought only when concrete evidence of harmful effects has accumulated. The Section 2 process too often leaves harmful practices in place for years while vote protection advocates meticulously document their impacts on minority voters, often racking up millions of dollars in costs.

In North Carolina, Section 4/5 objections blocked a flood of voter suppression measures. Anita Earls’s 2006 report on North Carolina’s Voting Rights Act cases documents how, “[i]n the six-year period from 1982 through 1987, Section 5 enabled the Attorney General to formally object to residency districts[2] in Beaufort, Bertie, Camden, Edgecombe, Guilford, Martin, Onslow, and Pitt Counties.” (Earls, 7) In all, during the 20 years from 1982 through 2002, 54 Section 5 objections were raised in North Carolina, pushing back proposed changes that would have diminished minority voting rights (Earls, Appendix 1).[3]

Covered counties used many different maneuvers to suppress minority voters’ voices, according to the Earls report, including “staggered terms, residency requirements, annexation of predominately white areas, majority vote and runoff requirements, unfair drawing of districts and maintenance of at-large voting.” (pp. 6-7).

Suppression of minority voters was not limited to county rule-bending. Entire statewide redistricting plans were found “problematic” by the DOJ, including the 1982 State House of Representatives plan, the 1991 statewide redistricting plan, and the 1996 statewide redistricting guidelines. (And, yes, all three were drawn by legislatures under Democratic Party control.)

This long experience of ongoing efforts to limit Black voting power shows why we urgently need to fully restore the VRA preclearance process. As currently drafted, the John Lewis Voting Right Advancement Act (the VRAA) would restore the flexible preclearance tool, but it would do much more. Whereas the 1965 VRA covered only 40 of North Carolina’s 100 counties, the proposed VRAA would raise an umbrella of federal voting rights protection over the whole state.

Starting in August, elected officials across North Carolina will once again draw their own districts. Realistically, it’s unlikely that the VRAA will be in place by then (one reason behind the legislators’ rush to redistrict rather than changing the election timetable). We the voters must do everything we can to fight gerrymandering and voter suppression, but, realistically, it won’t be enough.

As we’ve all learned, though, adoption of district maps by local governments and the state legislature is rarely the final word in North Carolina, Rigged maps can and will be fought in state court, but we urgently need the VRAA’s umbrella back in place:  we need to restore preclearance.

Once negotiations in Congress are complete, passage of the VRAA in the House is virtually assured. The real challenge is in the Senate. Our Senators voted not to confirm President Biden’s nominations for the top civil rights positions in the Justice Department, both women of color:  Vanita Gupta as Associate Attorney General and Kristen Clarke as the head of the Civil Rights division. Both were confirmed. Now we need to be sure the DOJ has the tools to get the job done!

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[1] First, the jurisdiction had to have a “test or device” restricting the opportunity to register and vote. In North Carolina, the presence of a literacy test was generally used to make this determination. Second, this test had to be effectively limiting minority participation in elections in the jurisdiction, as measured by either of two factors: 1) fewer than 50 percent of persons of voting age were registered to vote in November 1964 or 2) fewer than 50 percent of persons of voting age had actually voted in the 1964 presidential election.

[2] Residency district systems, also called districts-at-large, require that the candidates live in the specified districts. Voting is at-large in the general election and, in all but two counties, in the primary as well.

[3] DOJ records indicate that an additional four DOJ determination letters were issued between 2002 and the termination of Title 4/5 activities in 2013.