The Continuing Importance of the Voting Rights Act

In her excellent piece about the Republican Party's systematic vote suppression efforts, Dahlia Lithwick details the various strategies:

Whether it’s onerous (and expensive) voter ID rules that will render as many as 10 percent of Americans ineligible to vote, proof of citizenship measures, restricting registration drives, cancellation of Sunday voting, or claims that voting should be a privilege as opposed to a right, efforts to discount and discredit the vote have grown bolder in recent years, despite vanishingly rare claims of actual vote fraud.

The central issue here is the claim that "voting should be a privilege as opposed to a right." What's worse is that this isn't just a modern Republican creation but a flaw deeply embedded within American constitutionalism. Ratified in 1870 with support for Reconstruction already waning, the Fifteenth Amendment stated 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." But the language left it to the state to define the contours of the right, implicitly permitting the states to abridge the vote as long as these restrictions were not explicitly race-related. The effect of this, needless to say, was to destroy the racial equality promised by the amendment, as technically race-neutral restrictions such as poll taxes and literacy tests were used to effectively end black suffrage in the old Confederacy for many decades (while also denying the vote to some poor whites.) And while poll taxes are now unconstitutional because of the 24th Amendment, various other vote suppression tactics are not clearly prohibited. The failure of the Constitution to make voting a fundamental right makes the statutory protections of the Voting Rights Act especially important. Which makes a case decided by the D.C. Circuit last week and looming on the Supreme Court's docket particularly important. Alabama has challenged the "preclearance" provisions of the Voting Rights Act, which require changes to state voting laws made by jurisdictions (not all of them in the South) with a history of discrimination to get approval from the Department of Justice before changing their voting laws (The provisions where upheld when first challenged in the Supreme Court). This provision was critical to making the protection of voting rights work, because without it states could come up with creative new ways of denying the franchise in ways that did not explicitly mention race. To answer Jeffrey Toobin's question, yes, we absolutely still need the Voting Rights Act. Indeed, as proliferating vote suppression schemes make clear, the Act if anything should be strengthened. A good starting point would be to make the preclearance provisions applicable to all states, reflecting the fact that the new forms of vote suppression are hardly an exclusively southern phenomenon. The next time there is a more favorable legislative environment, Congress should expand the substantive provisions of the Act to reflect new attempts to restrict voting as well.

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