“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.”
“Georgia recently enacted a law that effectively enables the state Republican Party to disqualify voters and shut down polling precincts. If the state GOP wields this law to close down most of the polling places in the highly Democratic, majority-Black city of Atlanta, it’s unclear that a Voting Rights Act that’s been gravely wounded by three Supreme Court decisions remains vibrant enough to block them.”
“The impact of Shelby County was fairly swift. In 2013, for example, Texas enacted racially gerrymandered legislative maps, even though a federal court had rejected many key elements of these maps under the Voting Rights Act’s preclearance provisions. Yet, with preclearance dead, the Supreme Court upheld nearly all of Texas’s gerrymandered maps in Abbott v. Perez (2018).
Similarly, if preclearance were still in effect, it is unlikely that many of the controversial provisions of Georgia’s recently enacted voter suppression law would survive. And certainly no federal official acting in good faith would permit Georgia to simply start closing down polling places in Black neighborhoods.”
“The biggest uncertainty surrounding the Court’s voting rights decisions, in other words, is whether the Court will enable efforts to lock Republicans into power no matter what voters do to elect their candidates of choice, or whether the Court’s majority will, at some point, tell their fellow Republicans in state legislatures that they’ve gone too far.
The answers to these questions, moreover, won’t be found anywhere in the Constitution, or in any law enacted by Congress. The Roberts Court’s voting rights cases bear far more resemblance to the old English common law, a web of entirely judge-created legal rules governing areas such as contracting and property rights, than they do to the modern, more democratic model where federal judges are supposed to root their decisions in legal texts. The future of democracy in the United States will be decided by six Republican-appointed justices’ arbitrary whims.
And, if a majority of the justices do support a wholesale attack on liberal democracy, their actions will hardly be unprecedented.
Nearly a century before President Lyndon Johnson signed the Voting Rights Act, Congress and state legislatures passed a different kind of legislation that was supposed to guarantee the franchise to people of color.
It’s called the 15th Amendment, with its command that “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.”
The pre-Voting Rights Act United States did not deny voting rights to millions of African Americans because we lacked a legal guarantee protecting the right to vote. We did so because powerful public officials — including judges — decided that they did not care what the Constitution had to say about voting rights.
We’re about to find out whether the Supreme Court is going to repeat that history.”