How America Lost the Commitment to the Right to Vote
The Supreme Court, Justice Elena Kagan lamented in a dissenting opinion earlier this month, “has treated no statute worse” than the Voting Rights Act.
She’s right.
The Voting Rights Act is arguably the most successful civil rights law in American history. Originally signed in 1965, it was the United States’ first serious attempt since Reconstruction to build a multiracial democracy — and it worked. Just two years after President Lyndon Johnson signed the Voting Rights Act into law, Black voter registration rates in the Jim Crow stronghold of Mississippi skyrocketed from 6.7 percent to nearly 60 percent.
And yet, in a trio of cases — Shelby County v. Holder (2013), Abbott v. Perez (2018), and Brnovich v. DNC (2021) — the Court drained nearly all of the life out of this landmark statute. After Brnovich, the decision that inspired Kagan’s statement that the Court has treated the Voting Rights Act worse than any other federal law, it’s unclear whether the Supreme Court would rule in favor of voting rights plaintiffs even if a state legislature tried to outright rig an election.
These cases are the culmination of more than half a century of efforts by conservatives who, after failing to convince elected lawmakers to weaken voting rights, turned to an unelected judiciary to enact a policy that would never have made it through Congress. All of this is bad news for minority voters in America, who are most likely to be disadvantaged by many of the new restrictions currently being pushed in statehouses across America, and for the country’s relatively young commitment to multiracial democracy. And there are at least three reasons to fear that decisions like Shelby County and Brnovich foreshadow even more aggressive attacks on the right to vote.
The first is that Republican partisans can use race as a proxy to identify communities with large numbers of Democratic voters. In 2020, according to the Pew Research Center, 92 percent of non-Hispanic Black voters supported Democrat Joe Biden over Republican Donald Trump — and that’s after Trump slightly improved his performance among African Americans compared to 2016.
That means that state lawmakers who wish to prevent Democrats from voting can do so through policies that make it harder for Black voters (and, to a lesser extent, most other nonwhite voters) to cast a ballot. And Republican lawmakers haven’t been shy about doing so. As a federal appeals court wrote in 2016 about a North Carolina law that included many provisions making it harder to vote, “the new provisions target African Americans with almost surgical precision.”
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The second reason to be concerned about decisions like Brnovich is that the Supreme Court’s attacks on the Voting Rights Act are not isolated; they are part of a greater web of decisions making it much harder for voting rights plaintiffs to prevail in court.
These cases include decisions like Purcell v. Gonzales (2006), which announced that judges should be very reluctant to block unlawful state voting rules close to an election; Crawford v. Marion County Election Board (2008), which permitted states to enact voting restrictions that target largely imaginary problems; and Rucho v. Common Cause (2019), which forbade federal courts from hearing partisan gerrymandering lawsuits because the Court’s GOP-appointed majority deemed such cases too “difficult to adjudicate.”
Finally, decisions like Shelby County and Brnovich are troubling because the Court’s reasoning in those opinions appears completely divorced from the actual text of the Constitution and from the text of federal laws such as the Voting Rights Act.