The Decision That Could End Voting Rights

A federal court’s opinion yesterday could render the Voting Rights Act meaningless, if the Supreme Court upholds it.

A photo of Black protesters carrying American flags
Robert Abbott Sengstacke / Getty

November 21, 2023, 9:32 AM ET

The right to vote free of racial discrimination was won by blood and sacrifice, those of both the soldiers who fought to preserve the Union and the enslaved and formerly enslaved, and inscribed in the Constitution as the Fifteenth Amendment, so that sacrifice would not be in vain. But that right is also very inconvenient for the modern Republican Party, which would like to be able to discriminate against Black voters without interference from the government.

Yesterday, a three-judge panel from the Eighth Circuit Court of Appeals concluded that Section 2 of the Voting Rights Act, the law that made America a true democracy for all of its citizens, does not allow private parties to bring lawsuits challenging racial discrimination in voting, which is how the law has worked since it was passed. The decision would effectively outlaw most efforts to ensure that Americans are not denied the right to vote on the basis of race as the Fifteenth Amendment demands.

“It’s hard to overstate how important and detrimental this decision would be if allowed to stand: the vast majority of claims to enforce section 2 of the Voting Rights Act are brought by private plaintiffs, not the Department of Justice with limited resources,” the election-law expert Rick Hasen wrote on his website. “If minority voters are going to continue to elect representatives of their choice, they are going to need private attorneys to bring those suits.”

The Fifteenth Amendment and the Voting Rights Act were made necessary by the long and ongoing history of political parties seeking to disenfranchise voters on the basis of race. Lawmakers, given free rein, will do their best to draw districts to their party’s advantage. When racially polarized voting is present, the temptation will be to engage in racial discrimination against a rival party’s constituency. For example, if your party mostly relies on support from white voters, you might try to draw a district that minimizes the political power of Black voters, a practice called racial gerrymandering. This is what Democrats did in the aftermath of Reconstruction, and what Republicans are now accused of doing in Arkansas, the subject of this lawsuit, although not deliberately. The Voting Rights Act bans practices that have the purpose or effect of discriminating on the basis of race, a standard that prevents lawmakers from benefiting from discrimination as long as they can cover their tracks. During Arkansas’s 2021 redistricting process, the state chapter of the NAACP alleges, lawmakers there drew state-district lines that dilute Black voting strength.

The Constitution is supposed to forbid such discrimination, but that sounds simpler than it is. In practice, if you have enough judges or justices willing to find unconstitutional the laws adopted to enforce that right, or willing to rule in such a way that nullifies the ability of those laws to function, you can simply render the Fifteenth Amendment useless. This is what the Supreme Court did after Reconstruction, when Black people were still trying to assert their right to vote and the justices decided it was a right they could not or would not defend.

The majority’s reasoning is simple, if absurd. Although acknowledging that “Congress had ‘clearly intended’ all along to allow private enforcement,” it argues that the text does not say so explicitly, therefore Congress’s intentions, Supreme Court precedent, and decades of practice are irrelevant. The fact that this would allow lawmakers to discriminate against their Black constituents without interference from pesky civil-rights groups is an innocent coincidence. This interpretation of the law was teed up for the judges by Justices Neil Gorsuch and Clarence Thomas in another 2021 voting-rights case in which the conservative-dominated high court weakened prohibitions against voting discrimination.

All of this is part of a long-standing campaign by the Republican Party to undo one of its greatest accomplishments, the Fifteenth Amendment. It is a cause that Chief Justice John Roberts has championed since he was a 20-something lawyer in the Reagan Justice Department. As chief justice, Roberts has eviscerated voting-rights protections time and time again, in keeping with an ideological belief that prohibitions on racial discrimination are themselves morally tantamount to racial discrimination.

Until recently. In June, Roberts and Justice Brett Kavanaugh unexpectedly sided with the Court’s Democratic appointees in upholding a lower-court order forcing Alabama to stop discriminating against the state’s Black voters. Alabama originally defied this order, perhaps because it was so out of character with Roberts’s past jurisprudence. The state’s recalcitrance forced the Supreme Court to rebuke Alabama again and tell it to follow the law. Not having done so, after all, would have sanctioned broader defiance of the Court’s power, making Alabama’s behavior a direct threat to the justices’ authority, something none of the justices will countenance.

The Arkansas case does not pose such a threat, and therefore it raises the question of whether, this time, Roberts and Kavanaugh will go along with such an obvious attempt to allow Republican lawmakers to violate the voting rights of their nonwhite constituents with near-impunity. The fate of the right to vote free of racial discrimination is in the hands of powerful conservative men who, like the justices at the twilight of Reconstruction, have never considered it all that significant.

The Atlantic

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