Conservative Supreme Court justices could further erode landmark Voting Rights Act
The Supreme Court, which begins its new term this week, is about to consider a case that threatens to further undermine the Voting Rights Act of 1965.
The United States has a long and disgraceful history of race discrimination with regard to voting. In 1964, only about 43% of Black adults in the South were registered to vote; in Alabama, only 23% of African Americans were registered at that time, and in Mississippi, only 7%.
The key change occurred when Congress passed the Voting Rights Act of 1965, one of the most important civil rights statutes in American history. Section 2 of the law prohibited voting practices or procedures that discriminate on the basis of race or against certain language minorities. Under a 1982 amendment, state or local laws that disenfranchise voters could be subject to litigation.
But members of Congress knew that allowing lawsuits to challenge election procedures was not adequate to stop discrimination in voting. Such litigation is expensive and time-consuming.
Lawmakers were aware that Southern states in particular often invented new ways of disenfranchising minority voters. On several occasions, after a law adopted to limit voting by racial minorities was challenged and struck down, a new voting restriction would emerge. Section 5 of the Voting Rights Act was adopted to prevent such actions.
In the last decade, however, the Supreme Court has substantially weakened the Voting Rights Act. The court’s decision in Shelby County v. Holder, in 2013, effectively gave states permission to pass restrictive voting laws. In 2021, in Brnovich v. Democratic National Committee, the court made it much more difficult to prove that state voting requirements — such as restrictions on absentee ballots or polling place locations — have racially discriminatory impacts that violate Section 2.
In Merrill v. Milligan, which will be argued on Tuesday, the court will decide whether redistricting that has a discriminatory effect on racial minorities violates the Voting Rights Act.
After the 2020 census, the Alabama Legislature drew new electoral districts for the state’s seven seats in the House of Representatives. A lawsuit was brought to challenge these districts as racially discriminatory. A three-judge federal court in Alabama heard seven days of testimony, read over 1,000 pages of briefings and concluded that the map drawn by the Legislature violated Section 2.
The three judges, including two Donald Trump appointees and one appointed by Bill Clinton, noted that although 27% of Alabama’s population is Black, the state’s Black voters were packed into one district and split among the rest so that only one district was likely to elect a Black representative. The court ordered that the congressional districts be redrawn.
But before this could occur, the Supreme Court voted 5-4 to suspend the lower court’s order and ruled that the discriminatory maps should be used for the 2022 election. In addition, the court granted review in the case, generating significant concern that the court could make it much harder to challenge racial discrimination in the drawing of electoral districts.
It’s clear that the conservative justices regard race discrimination in voting as a thing of the past and therefore seek to limit or eliminate the Voting Rights Act. If the court follows this path, it will further limit protections against race discrimination in our electoral system.
Every study of the issue — like the experience in Alabama — shows that disenfranchisement and discriminatory redistricting practices remain serious problems. It’s time for the Supreme Court to recognize this and enforce the Voting Rights Act.
