Voting Rights at Risk—Once Again

Upon the passage of the Voting Rights Act in 1965, for the first time in American history, discrimination at the ballot box was explicitly barred. As a part of the Law, Congress targeted specific districts that were known to discriminate during the voting process and reduce turnout of minority voters. To stop this from happening, Section 4 of the Voting Rights Act worked in tandem with Section 5 to require certain districts, primarily in the South, to gain federal approval before making changes to their voting laws or procedures.¹ In 2013, though, the Supreme Court ruled in Shelby County v. Holder (2013) that Section 4 of the Voting Rights Act was unconstitutional.² After the Supreme Court struck down Section 4 in Shelby County, voting rights were significantly weakened as several instances of restrictive voting laws, including in Texas and North Carolina, were enacted across the country. This year, the Court heard another challenge to the Voting Rights Act in Merrill v. Milligan (2022). The case questions the constitutionality of a congressional redistricting plan in Alabama and threatens Section 2 of the Voting Rights Act. If the Court further weakens the Voting Rights Act by limiting Section 2, as it seems poised to do, they will have removed the last layer of defense against voter suppression, damaging Voting Rights even further than the 2013 Shelby County ruling did.

To understand the potential damage caused if the Voting Rights Act is further amended this year, it is first necessary to establish how the original Shelby County decision weakened voting rights. In a 5-4 decision, the Court held in Shelby County that Section 4 of the Voting Rights Act was no longer necessary to protect the rights of minority voters. In the majority opinion, Chief Justice Roberts wrote that “the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.”³ Despite Roberts’s reasoning, immediately following the decision, multiple states quickly acted to pass restrictive and discriminatory voting laws. Prior to Shelby County, In Texas, SB 14, a bill that expanded voter identification laws by restricting the accepted forms of photo IDs, was passed.⁴ According to the Brennan Center for Justice, the law impacted up to 600,000 Texans who did not have an accepted form of ID under the new law, preventing them from voting.⁵ It’s clear that SB 14 disproportionately restricts voting access for minority voters because in 2012, Texas unsuccessfully lobbied a district court to grant permission to enact it, but the court struck it down as it found that it discriminated against minority voters.⁶ Following the Shelby County decision, though, Texas was able to pass SB 5, a new law which effectively had the same impact as SB 14, but no longer needed federal approval.⁷ North Carolina also took advantage of the decision to pass restrictive voting laws.⁸ For example, North Carolina passed HB 589 which not only implemented strict voter ID laws, but also cut down on same day voter registration and, in certain counties, eliminated extra voting hours.⁹ Both the laws in Texas and North Carolina suggest that following amendment to the Voting Rights Act, states act quickly to implement restrictive voting laws that would have been deemed unconstitutional by federal courts.

In October of 2022, the Supreme Court heard a challenge to Section 2 of the Voting Rights Act in Merrill v. Milligan. The case considers the constitutionality of Alabama’s recently drawn congressional maps, determining whether the maps unfairly discriminate on the basis of race. Section 2 of the Voting Rights Act states that voting procedures and laws can not “deny or abridge the right of any citizen of the United States to vote on account of race or color.”¹⁰ Section 2 has been used to overturn restrictive voting laws in the past, including the restrictive North Carolina election law, HB 589, which was found to violate Section 2 of the Voting Rights Act for targeting Black voters “with almost surgical precision.”¹¹ In Merrill v. Milligan, a district court panel found that the newly drawn districts violated Section 2 of the Voting Rights Act by unfairly discriminating against Black voters. In February, the Supreme Court agreed to hear an appeal to this case. Alabama is arguing that Section 2 should not prevent their newly drawn districts—which are drawn to pack Black voters into one district—from being thrown out.¹²

The pending Supreme Court case has important ramifications for the future of voting rights, even more so than Shelby County, because Section 2 serves as the last stop-gap preventing the passage of discriminatory voting laws. In recent years, as suggested by Shelby County, the Roberts Court has increasingly targeted the Voting Rights Act. With this, and the now 6-3 conservative majority in mind, it's likely that the Voting Rights Act will be further restricted. After Shelby County terminated the enforcement of Section 4 and 5, Section 2 now remains one of the last laws that explicitly prevents discriminatory efforts by states. Even after Shelby County, plaintiffs could still rely on Section 2 to challenge blatant examples of discrimination in voting. For example, North Carolina’s HB 589 was overturned by Section 2 despite Section 4 no longer being enforced. This is the result of an important distinction between the two Sections: Section 4 ensures that specific states don’t pass any voting law without federal approval; in contrast, Section 2 provides targeted protection against, specifically, discriminatory voting laws. So, even without Section 4, Section 2 still ensures that voting laws don’t discriminate on the basis of race or color. For example, in 2021, the Justice Department filed a challenge to Georgia’s SB 202, a restrictive state voting law passed in response to the 2020 election that had a “disproportionate effect” on Black voters according to the Department of Justice.¹³ As a result of the Shelby County decision, the Department of Justice was unable to stop the law from being enacted in the first place, but it was still able to challenge the law under Section 2 as an instance of a discriminatory voting law. So, Section 2 serves as the last layer of defense for preventing discriminatory voting laws, proving its relevance to securing voting rights today. If the Court sides with Alabama, states will be further emboldened to target minority voters through restrictive voting laws or racially discriminatory congressional districts, just as they did following Shelby County. Undoing Section 2 will therefore have an even more devastating impact on voting rights than Shelby County because it removes the very last layer of defense.

As the Supreme Court actively considers Alabama’s appeal, the future of voting rights hangs in the balance, as striking down Section 2 poses an even greater threat than the Shelby County decision. If the Supreme Court further weakens the Voting Rights Act by not enforcing Section 2 as it seems poised to do, states will be further emboldened to pass restrictive and discriminatory election laws and maps. While the Court can avoid this future by enforcing Section 2 in Merrill v. Milligan, action will be needed from the American people and Congress to securely and permanently defend voting rights. There are multiple bills currently in Congress, including the John Lewis Voting Rights Act, which would “modernize and revitalize the VRA by strengthening legal protections against discriminatory voting policies” and strengthen Section 2 in the wake of the pending Supreme Court decision.¹⁴ To permanently secure voting rights, the American people and Congress must understand the grave threat the pending case poses and act to respond.

References

1. Voting Rights Act of 1965, Pub. L. 89-110, 79 Stat. 437. ↩

2. Shelby County v. Holder, 570 U.S. 529 (2013) ↩

3. 570 U.S. 529 (2013) ↩

4. Brennan Center for Justice. “The Effects of Shelby County v. Holder,” August 6, 2018. https://www.brennancenter.org/our-work/policy-solutions/effects-shelby-county-v-holder. ↩

5. Brennan Center for Justice ↩

6. Ibid ↩

7. Ibid ↩

8. Ibid ↩

9. Ibid ↩

10. Voting Rights Act of 1965, Pub. L. 89-110, 79 Stat. 437. ↩

11. North Carolina State Conference of the NAACP v. McCrory, 2016 4th Circuit Court of Appeals ↩

12. Howe, Amy. “Conservative Justices Seem Poised to Uphold Alabama’s Redistricting Plan in Voting Rights Act Challenge.” SCOTUS BLog, October 4, 2022. https://www.scotusblog.com/2022/10/conservative-justices-seem-poised-to-uphold-alabamas-redistricting-plan-in-voting-rights-act-challenge/. ↩

13. Department of Justice. “CASES RAISING CLAIMS UNDER SECTION 2 OF THE VOTING RIGHTS ACT,” May 25, 2022. https://www.justice.gov/crt/cases-raising-claims-under-section-2-voting-rights-act-0. ↩

14. Brennan Center for Justice. “Strengthening the Voting Rights Act,” n.d. https://www.brennancenter.org/issues/ensure-every-american-can-vote/voting-reform/strengthening-voting-rights-act. ↩