What is going on with the Voting Rights Act?
Thirty-five days to go…
In my last blog, I got into the weeds of why the American voting system can favor a minority and currently favors Republicans. (In other words, how the Republicans won the presidential election in 2000 and 2016 even though they lost the popular vote.) Reader beware… this week we are delving into another complex matter relating to our electoral system.
Currently, we are seeing a concerted effort to gut the 1965 Voting Rights Act or declare it unconstitutional. This endeavor ideologically connects with Republicans’ stated view that the role of the Federal government should be limited and should not be the source of favorable treatment towards particular groups. But in fact, a central tenet of Republican politics for decades has been to win elections by making it difficult for their opponents to vote. So this endeavor should not be passed over without further investigation.
The Voting Rights Act of 1965 is a federal law created to assure that the right to vote cannot be denied on account of race. It enforces the Fifteenth Amendment to the Constitution, which stipulates “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
Though the Fifteenth Amendment was ratified in 1870, Blacks’ voting rights continued to be curtailed by state constitutions, poll taxes, literacy requirements, and intimidation. The Voting Rights Act addressed the continuing barriers to voting.
In 2013, the Supreme Court, in its Shelby County v. Holder decision, struck down the core stipulation of the Voting Rights Act. Section Five of the Act requires preclearance from the Federal government for any change of voting law or redrawing of district boundaries in districts that have had a history of voter suppression or racial discrimination. Section Four (b) lays out the formula for determining which jurisdictions are covered under Section Five. Shelby County v. Holder invalidated Section Four (b), with the result that Section Five no longer has any power. This was a signal to the legal system nation-wide that the Federal courts would no longer be the protector of voting rights, and that states therefore would be able to pass restrictive voting legislation. Since the Shelby decision, at least 29 states have passed 94 laws restricting voting. Some of these have been blocked by the courts, but every one of the 29 states now has at least one more restrictive law on its books.
The crippling of Section Five has made Section Two of the Voting Rights Act all the more important. Section Two outlaws “denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” Section Two provides a mechanism for challenging maps and laws that have been enacted with a discriminatory purpose or impact.
Lawsuits relating to Section Two attempt to limit the Voting Rights Act in three ways: trying to remove the possibility for minority coalitions under Section Two, to restrict who can bring lawsuits under Section Two, and to make Section Two unconstitutional.
A Supreme Court ruling on Allen v. Milligan in June 2023 affirmed the power of Section Two. Leading up to this decision, in November 2021, citizens’ groups had sued the state of Alabama with regard to its new district map created in the wake of the 2020 census. In the new map, new district lines created only one district with a majority black population. The suit claimed that this diluted black Alabamans’ voting power. A District Court in Alabama found in favor of the suit, but it was appealed to the Supreme Court, which initially put a hold on the Alabama court order, leaving the new district lines in place for the 2022 election. The Supreme Court later considered the case in full and in June 2023 found 5-4 in favor of the plaintiffs, requiring a redrawing of Alabama’s district boundaries to make two black majority districts. In doing this, the Court affirmed Section Two of the Voting Rights act.
But at the time of the Supreme Court’s ruling on June 8, 2023, there were thirty-two active Section Two lawsuits proceeding in ten states.
In Arkansas last November a decision by the Federal Appeals Court of the Eighth Circuit held that voters and civil rights groups cannot bring claims under Section Two. Now only the U.S. attorney general can bring claims based on Section Two in the Eighth Circuit. This decision affects not only Black and minority voters in Arkansas, but also minority voters in Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota, given that the Federal Appeals Court of the Eighth Circuit court has jurisdiction in those states.
Republican officials are now trying to extend this decision beyond the Eighth Circuit. In Louisiana, their efforts have been denied by the Fifth Circuit court, which covers Louisiana, Mississippi and Texas.
Republican activists are also trying to remove the Section Two right of more than one minority group to club together in a district in order to create a majority of minorities. In Galveston County, south of Houston, Texas, neither the black nor Hispanic population on its own is enough to earn majority status in a district, even though these two groups together make up 40% of voters in the county. If minority-coalitions are deemed impermissible, then 40% of the population in the county will have no way to elect a representative who looks like them. New districting created districts that split the minority vote among several districts. The Texas court ruled this unconstitutional, and a three-judge panel of the Fifth Circuit Appeals Court confirmed this ruling, but in addition it asked the Fifth Circuit court to reconsider the case. Therefore, we don’t know right now what the ultimate outcome will be.
In Georgia, Republican officials are raising questions about the constitutionality of Section Two, arguing that the Voting Rights Act requires “inherently race-based remedies,” which, they argue, are not justified under the Fourteenth and Fifteenth Amendments. This argument has been rejected in the Georgia court, on the basis of the “the Supreme Court’s Allen v. Milligan ruling mentioned above.
In Florida, Kansas, Missouri and Texas, Republicans have beefed up criminal penalties and fines for those who “assist voters.” Florida Gov. Ron DeSantis last May introduced a $50,000 fine on third-party voter registration organizations if paid or volunteer staff who collect the forms have been convicted of a felony or are not U.S. citizens. As a result, some voter outreach groups have had to change their ways of doing business or cease altogether.
In Missouri an election law passed in 2022 bans compensation for people who register voters and stipulates that a person who helps more than 10 people register must be registered with the secretary of state’s office and must be a voter themselves. Failure to adhere to these requirements could lead to criminal penalties.
At the beginning of 2024, the Republican National Committee and the Georgia Republican Party intervened in a lawsuit challenging Georgia’s absentee ballot application deadline. The basis of their argument: the Voting Rights Act is unconstitutional. This initiative did not succeed but is being appealed in Georgia’s Eleventh Circuit court.
According to the Brennan Center for justice, there is ample evidence that these laws affect communities of color at a high rate. Courts have indeed struck down some as racially discriminatory. Since the Shelby County ruling of 2013, gaps between turnout rates for white voters and voters of color have widened. The Brennan Center’s research also indicates there was a racially discriminatory purpose in passing these laws, giving the lie to the presumption in the Shelby County ruling that protections for minority voting are no longer needed.
As is noted in the Shelby County ruling, the Supreme Court’s gutting of the Voting Rights Act can be reversed by Congress by passing the John R. Lewis Voting Rights Advancement Act, which would restore the Voting Rights Act to its full strength, and the Freedom to Vote Act, which would set nondiscriminatory baseline national standards for voting and elections.