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If you read on Tuesday that the Supreme Court was hearing a challenge to a key part of the Voting Rights Act and thought to yourself, “Didn’t they already dismantle the Voting Rights Act?” you were right they did A few times already.
But the landmark 1965 law looms large in American elections, even as it appears to have been overruled by conservative Supreme Court justices.
Recent update attempts have failed.
The recent decisions of the Supreme Court have neutralized it.
The question now is what is left?
The Act is divided into five sections and did several important things when it was first passed.
Section 1, which is still available, outlaws voting barriers like literacy tests, requires the same standards to be applied to all voters, and prohibits voter intimidation by state officials.
The first repeal of the Voting Rights Act was in 2013, when the court struck down a preemption system that forced states and jurisdictions with historic racial discrimination and very low voter turnout to clear new voting restrictions with the federal or federal government. Court in Washington, DC.
But Shelby County v. In the Holder case, Chief Justice John Roberts noted that the formula for determining which states and localities must preclear voting law changes was based on data from 1964, 1968 and 1972.
“Our country has changed,” he wrote, arguing that Congress should come up with a new formula. He never did and efforts to update the law with a new Voting Rights Act named after Rep. John Lewis failed to break a GOP filibuster.
The second repeal of the Voting Rights Act came in 2021. Brnovich v. In the Democratic National Committee case, the Supreme Court upheld provisions of an Arizona law that limited who could collect ballots cast in the wrong precinct and absentee ballots. The decision opened the door to new restrictions in GOP-controlled states and challenged Section 2 of the Voting Rights Act’s protections against denial of the vote, or making it difficult for people to vote.
Now, the court is considering overturning Section 2’s protection against vote dilution, or rendering votes meaningless, with a case involving a state’s congressional map outside of Alabama. More than a quarter of Alabamians are black, but the map created only one majority-black congressional district out of seven in the state. A federal court ruled that the map harmed minority voters, but in a 5-4 ruling, the Supreme Court allowed the map to remain in place while it reviews the case. Alabama’s Republican Secretary of State has argued that considering race to draw maps that give power to black voters is discriminatory. A result in favor of Alabama could allow the state to draw congressional lines in a way that minority voters would not have a reasonable chance to gain proportional influence.
Note: Another big news story from CNN: Fredreka Schouten wrote in the Citizen newsletter this week that the Alabama case is one of two that the court could change future elections. Read more.
Schouten also has a strong report on the mix-up to make sure Floridians affected by Hurricane Ian can vote. read it.
After its passage in 1965, the Voting Rights Act took effect immediately, and updates to the law were passed periodically under both Democratic and Republican presidents until 2006. They added protections for English speakers, among other things.
Voting Rights Act The Voting Rights Act was passed at a time when less than half of eligible black voters were registered to vote in some Southern states.
Black Americans are generally less likely than white Americans to vote in both congressional and presidential elections, according to Census data, but the gap narrowed under Barack Obama. Young black Americans were more likely than young white Americans in 2008, according to Census data, and in 2012, black Americans were at a higher rate overall than white Americans.
In elections since then, and since the Supreme Court’s 2013 preemption decision, a gap has reappeared between white voter turnout and black voter turnout, according to an analysis of Census data by the Brennan Center for Justice. It coincided with a number of strict voter ID laws passed in the past decade, made possible in part by a 2008 Supreme Court decision. There is research that shows these laws can reduce turnout in more racially diverse areas and also don’t affect enough people to change the outcome of an election.
I spoke with Zoltan Hajnal, a professor at the University of California, San Diego, who has studied the impact of voter ID laws. He said voter turnout alone doesn’t tell the story of voting access.
“You can see a relatively high participation and say ‘wow’, or you can see that participation and say, well, actually, with a more open and democratic process, we would have a much higher participation. And with a more open and fair democratic process, we would have a more equal participation,” said Hajnal.
The U.S. Commission on Civil Rights, a bipartisan organization, issued a unanimous report in 2018 that found voter restrictions were affecting minority voters.
“We’ve been here since 1965 for the protection of these tools, it’s foolish to think we still don’t need them and the last 10 years … indicate that’s the case,” Danielle Lang. who heads the voting rights group at the Campaign Legal Center, told me. He said long lines at the polls, absentee ballots thrown out on technicalities and other obstacles disproportionately affect minority communities.
In the future, Lang said, those may seem discriminatory.
“With the benefit of hindsight, things like poll taxes and grandfather clauses seem very obvious,” he said. “Some of the forms of voter suppression that we see today don’t seem so obvious to us today. I think it will seem really obvious in retrospect.’
There is also a strong argument that when people are given a wider opportunity to vote, they do. The 2020 presidential election, in which states expanded and expanded voting opportunities due to the Covid-19 pandemic, is the 21st century. They had the largest participation of the century.
Several states moved to limit voting and mail-in voting after 2020. Those efforts were led by Republicans, and they theoretically win if fewer people and fewer minorities vote.
Since 2021, 18 states have passed 34 laws that restrict voting access in some way, according to an ongoing study by the Brennan Center. Other states have passed laws making voting easier.
Restrictive laws will affect voters of color more than the general population, according to the Brennan Center. Some restrictions are quite clearly aimed at black voters, such as restrictions on Sunday voting.
Barriers to voting like the literacy tests that existed before the Voting Rights Act won’t reappear, Yurij Rudensky of the Brennan Center’s Democracy Program told me. But he said efforts to limit the influence of communities of color will continue by redistricting and creating obstacles that make it harder to register to vote or devalue certain polling places.
“It’s really a whole ecosystem of laws, rules and decisions that contribute to how fair and free elections are,” Rudensky said.
The current state of the ecosystem is that federal laws protecting minority votes are being challenged and state laws that have the effect of putting up barriers are being passed.