What is the Voting Rights Act, and how does it apply to the 2028 election?

The Voting Rights Act of 1965 was enacted in the aftermath of the civil rights movement and the nationally televised events of March 7, 1965 -- known as Bloody Sunday -- when state troopers beat peaceful marchers attempting to cross the Edmund Pettus Bridge in Selma, Alabama, as they marched toward Montgomery to demand voting rights. President Lyndon B. Johnson signed the Act on August 6, 1965. The VRA targeted specific barriers that had disenfranchised Black voters in the South for decades: literacy tests (immediately suspended in covered jurisdictions and later banned nationwide), racially restrictive voter registration practices, and a system in which local officials could block voter registration at will with near-total impunity. Section 4(b) of the original Act created a formula identifying which states and political subdivisions fell under enhanced federal oversight, and Section 5 required those 'covered jurisdictions' to obtain preclearance from the U.S. Department of Justice or the U.S. District Court for the District of Columbia before making any change to their voting laws or procedures -- a dramatic reversal of the normal legal default in which a law is presumed constitutional until struck down.

Congress has reauthorized the VRA five times: in 1970, 1975, 1982, 1992, and 2006. The 1982 reauthorization made a significant substantive change to Section 2, replacing an intent-based test with a results test: plaintiffs no longer needed to prove that a state acted with discriminatory intent; they needed to show only that a voting practice resulted in minority voters having less opportunity to elect representatives of their choice. The 2006 reauthorization -- the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 (Pub. L. 109-246), signed July 27, 2006 -- extended the Section 5 preclearance requirement for another 25 years and expanded language-assistance requirements under Section 203, which requires bilingual election materials in jurisdictions where language minority populations meet a numerical threshold. At the time of the 2006 reauthorization, the covered jurisdictions included Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia in their entirety, plus parts of California, Florida, Michigan, New Hampshire, New York, North Carolina, and South Dakota.

In Shelby County v. Holder (570 U.S. 529, 2013), the Supreme Court struck down Section 4(b) by a 5-4 vote, holding that the coverage formula -- based on voting data from 1964, 1968, and 1972 -- no longer reflected current conditions and therefore could not justify the 'substantial departure from the principle that all States enjoy equal sovereignty.' Without a valid coverage formula, Section 5 became inoperable: covered jurisdictions were no longer required to seek preclearance before changing voting laws. The decision preserved Section 5 itself, meaning Congress could enact a new coverage formula. As of mid-2026, no replacement formula had been enacted into law. The practical consequence is that states previously subject to preclearance may implement voting law changes without advance federal approval, subject to after-the-fact challenge under other provisions.

Section 2 of the VRA remains fully operative nationwide and is the primary legal mechanism for challenging discriminatory voting practices in the 2028 election cycle. Section 2 bars any voting qualification, standard, practice, or procedure that results in the denial or abridgement of the right to vote on account of race, color, or membership in a language minority group. Unlike Section 5, which required advance approval, Section 2 challenges are brought in federal court after a law or practice has taken effect. In Brnovich v. Democratic National Committee (2021), the Supreme Court addressed how Section 2's results test applies to facially neutral voting restrictions -- rules that do not mention race but that plaintiffs contend have a disparate impact on minority voters. The Court held that the mere fact a voting rule has a disparate impact is not sufficient; courts must evaluate the totality of circumstances, including the size of the burden the rule imposes, how much the rule departs from standard practice at the time of the 1982 amendments, the degree to which the state's overall voting system provides opportunity to participate, the strength of the state's interest in the rule, and the size of the disparity. Section 2 litigation continues to be active in the period leading up to the 2028 election, with suits challenging state laws on early voting hours, drop box availability, voter ID requirements, and the handling of mail ballots.