Bryan Olin Dozier/NurPhoto via AP
Demonstrators gather outside of the United States Chamber of Commerce in Washington, August 26, 2021, to protest Black voter suppression.
This article appears in the February 2024 issue of The American Prospect magazine. Subscribe here.
For the first 48 years of its existence, the Voting Rights Act of 1965 was bruised but not battered. While near-constant lawsuits chipped away at it, the VRA maintained its core structure, protecting Black voters and other groups from discrimination at the ballot box. But in 2013, U.S. Chief Justice John Roberts issued a 5-4 opinion in Shelby County v. Holder, which gutted the legislation’s core mechanism, known as preclearance. That mechanism forced states with a history of discrimination to get approval from the Justice Department for any legislation affecting voter participation or access.
The Shelby County decision ended preclearance in a roundabout way, by declaring Section 4(b) of the VRA unconstitutional. Under Section 4(b), a coverage formula was used to determine which states and localities were subject to preclearance.
“[T]he conditions that originally justified these measures no longer characterize voting in the covered jurisdictions,” Roberts wrote in his opinion. Congress could modernize the coverage formula, the Court said, and preclearance itself, which was contained under Section 5, was left alone. But while there was once a time when the VRA was uncontroversial—as recently as 2006, extensions of expiring provisions of the law passed unanimously in the Senate and with 390 votes in the House—changes to the preclearance formula never passed Congress. As the Shelby County decision went into effect, dozens of discriminatory voting laws cropped up, particularly in the South, where most of the states subject to preclearance were located.
In his opinion, Roberts acknowledged that “voting discrimination still exists; no one doubts that.” Striking down the coverage formula, he wrote, did not constitute the end of the VRA. “Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in [Section] 2.”
A decade later, that “permanent ban” is itself under attack. Arkansas State Conf. NAACP v. Arkansas Bd. of Apportionment was brought by the NAACP Legal Defense Fund in order to challenge Arkansas’s redistricting plans, which concentrated Black voters into districts that diluted their voting power, and therefore violated Section 2 of the VRA. This time, Arkansas Attorney General Tim Griffin argued that there is no explicit language in Section 2 allowing a private right of action in the VRA, which would bar citizens, political parties, or groups like the NAACP from suing under the law, and leave the Justice Department as the only entity able to bring lawsuits for VRA violations, and render the case a moot point. Of course, Shelby County had already robbed the DOJ of its most potent tool, the preclearance function.
In February 2022, a Donald Trump–appointed U.S. district court judge agreed with Griffin, and in November 2023, a three-judge panel for the Eighth Circuit Court of Appeals confirmed that there is no private right of action. Fourteen states, including Texas, Utah, and Florida, filed a joint amicus (“friend of the court”) brief, indicating alignment with the argument. In December, the American Civil Liberties Union petitioned for a rehearing; a decision is pending. For the seven states in the Eighth Circuit’s jurisdiction, Section 2 now teeters in limbo, and the fate of the VRA with it.
Were the power of citizens to enforce Section 2 permanently struck down by the Supreme Court in its next term, the VRA would be left with few avenues for combating voter discrimination. It would continue a decade of work by conservative lawyers and judges to weaken the VRA to a point of irrelevance.
Sophia Lin Lakin, director of the ACLU Voting Rights Project, told the Prospect that the Eighth Circuit “is the only court that has held this ever, in 60 years, despite hundreds and hundreds of cases … Congress certainly contemplated, when they created the statute, that private individuals would be enforcing it.” The ability of citizens to sue under Section 2 has been settled precedent since 1980, when in City of Mobile, Alabama v. Bolden the Supreme Court “assum[ed], for the present purposes, that there exists a private right of action to enforce this statutory provision.”
Allen v. Milligan, which upheld that racial gerrymanders are illegal, was brought by private plaintiffs.
Voting rights advocates feel confident that the right of private action will remain intact, either upon a full-panel rehearing or a subsequent appeal. “We expect that the full Eighth Circuit will correct course and align with other courts that recognize voters’ ability to use arguably the most important civil rights law in American history to vindicate their fundamental right to vote free of discrimination,” Adam Lioz, senior policy counsel at the Legal Defense Fund (LDF), told the Prospect in an email.
Yet the fact that a private right of action for the VRA is being challenged at all is an indicator of a dire moment for voting rights.
There really is no more room for the VRA to lose enforcement capabilities. Since Shelby County, historically discriminatory states have approved stringent voter ID laws, restrictive polling hours and ballot rules, as well as a host of other forms of voter discrimination. Without preclearance, voting rights advocates have had to diligently file suits challenging these strategies to deny voters the ability to cast a ballot; without a private right of action, they would be mostly unable to do even that. (Sources told the Prospect that voters could use Section 1983 of the U.S. Code to sue under the deprivation of their civil rights, a different mechanism than the VRA.)
Members of Congress have introduced multiple bills that would undo the harm of Shelby County and other legal rulings, and resolidify voting rights as a nonnegotiable element of American democracy. Lakin also notes that the ACLU is being diligent against the decision spreading into other circuits, although this has already begun. But if Congress couldn’t react to Shelby County a decade ago, it’s unlikely now—especially with a Republican House—to get much done in the near future. Black people and voter advocates will have to fight for their rights in court.
VOTING RIGHTS ARE A BULWARK of American democracy. The VRA effectively executed the 14th and 15th Amendments passed during Reconstruction nearly 100 years earlier, which provided equal protection of the law and guaranteed the right to vote no matter your race or formerly enslaved status, respectively. The 14th Amendment granted Congress the power to implement it, but it took a century of Jim Crow before Congress felt enough pressure from the civil rights movement to pass the VRA. Without viable legislation actively protecting voting rights, the Reconstruction amendments will have less daily impact.
In the Shelby County decision, Roberts highlighted the outdated coverage formula that dictated under Section 4(b) which states would be subject to preclearance. For example, Roberts noted that the 4(b) formula cited states that used forbidden items like literacy tests, which he said have been illegal for “over 40 years.” But he failed to acknowledge continued innovations in voting rights suppression, such as gerrymandering, that are not explicitly covered in 4(b) but share the same goal of discrimination.
Since Shelby County, voter suppression laws have spread throughout the country. As the Brennan Center for Justice noted in 2023, over a ten-year period, 29 states have passed 94 restrictive voting laws, which have “target[ed] every aspect of voting, including making voter registration more difficult, curtailing early voting opportunities, closing polling places, and limiting voter assistance.” The gap in turnout rates has predictably grown between Black people and white people as a result, “including in jurisdictions previously covered by preclearance.”
As Leslie Proll, senior director of the Voting Rights Program at the Leadership Conference on Civil and Human Rights, noted, the tactics of voter suppression have changed since Shelby County. “It’s not to say they’re still not doing voter ID restrictions,” she told the Prospect, pointing to a 2022 Ohio voter ID law as one of the most restrictive. “That’s still happening, but they’ve also changed tactics.” Mail-in voting, for example, has become a target.
Voting rights advocates have changed tactics as well, challenging cases that they would have previously left to the Justice Department under preclearance. But conservative courts struck back at those efforts. In Brnovich v. Democratic National Committee (2021), the Supreme Court allowed Arizona voting laws to stand on the basis that they were not enacted with a racially discriminatory purpose, the first time Section 2 had been applied to voting rules specifically. The ruling chilled efforts by advocates to take on voting administration rules like absentee ballots or drop boxes.
AP PHOTO
The Voting Rights Act has been under near-constant legal attacks since Lyndon Johnson signed it in 1965.
It is true that, since the VRA’s passage, voter participation has grown and been extended to other groups. Indeed, voter registration among Black people outnumbers that of white people in some areas, and other majority-minority groups have improved their voter registration numbers, as well.
But narrowly interpreting Section 2 as solely available for the Justice Department to enforce would severely weaken the act even further. For one, as Lakin explained, there is the issue of bandwidth. “We’re just talking about leaving so many voters out in the cold; the DOJ can only cover so much territory.”
As the ACLU noted, of the 400-plus cases brought forward on Section 2 violations to the federal court, the “vast majority have been brought by private plaintiffs.” That includes 12 cases put before the Supreme Court.
In addition to limited bandwidth, not every administration is voting rights–friendly. “It would be remiss not to say that for some administrations, this isn’t going to be a priority. Enforcement is not going to be a priority,” Lakin said.
CONSERVATIVE GROUPS HAVE SEIZED every opportunity to challenge and hack away at the VRA. The Arkansas decision is almost sure to see the Supreme Court, and the fate of the VRA gets less certain the more it is challenged.
But in some recent cases, the Supreme Court has actually upheld the validity of the VRA. Last year’s Allen v. Milligan was brought by private plaintiffs, one of which was NAACP LDF. In the case, Alabama’s redistricting map was challenged as a racial gerrymander that weakened Black voter representation under Section 2, an argument that was reaffirmed by the Supreme Court. As Lioz told the Prospect, the case “demonstrates that the VRA remains a vital tool for fighting discrimination.”
This case has already forced Alabama and Georgia to redraw their congressional maps, and could lead to changes in Louisiana as well. In Ardoin v. Robinson (2023), the court ruled that the Louisiana congressional map was in violation of Section 2, following the Allen v. Milligan precedent, and rejecting the argument against a private right of action.
The Arkansas case was about the exact same dynamic of racial gerrymandering, which under Allen v. Milligan should get a Supreme Court majority to strike down Arkansas’s maps. That’s perhaps why the state resorted to challenging the Section 2 private right of action. There’s no question that, if the Supreme Court upheld the Arkansas ruling, other states would go back and try to invalidate the Allen v. Milligan precedent, on the grounds that the plaintiffs had no right to bring the cases. Indeed, after the Eighth Circuit ruling, the Louisiana attorney general asked the Fifth Circuit to rehear its case.
As The Guardian noted, more challenges to voting rights are being reviewed by the courts. In Georgia, Republicans are attempting to structure elections for state school boards or county commissions, “bodies of government where civil rights litigators have long turned to the law to combat voting discrimination,” in a way that voting rights groups have alleged dilutes Black voting power in violation of Section 2. And in Texas, courts have expressed willingness to restrict the ability to consider multiracial groups as one entity for the purpose of drawing legislative districts.
VOTING RIGHTS ADVOCATES HAVE TWO main paths of recourse at this moment. But both of them rely on a deadlocked Congress that has stood in the way of progress.
The Supreme Court explicitly wrote in Shelby County that the formula for preclearance coverage could be modernized and updated. The John Lewis Voting Rights Advancement Act does just that, creating a new coverage formula and strengthening other elements of voting laws. It was reintroduced in the House in September 2023.
Another strong piece of legislation is the Freedom to Vote Act, introduced in the last Congress as H.R. 1, where it failed thanks to the Senate filibuster. Had it been passed, it would have protected elections on local and federal levels, by expanding voting methods, modernizing voter registration, and more. The act was reintroduced in July 2023.
As Proll noted, these pieces of legislation would, if both passed, work simultaneously to undo the courts’ crippling of the VRA. “It would supplant those provisions in a way that provides immediate access in a lot of different places where it has recently been restricted,” Proll told the Prospect. Congress could also amend the VRA to explicitly grant a private right of action under Section 2.
But any such passage is likely to be on hold unless Democrats regain a majority in both houses of Congress, and until the Senate rules allow for a majority vote to pass legislation.
In addition, the NAACP LDF urges states to write and pass their own versions of the Voting Rights Act. State VRAs have the ability to restore key elements such as preclearance through state attorneys general, protections against voter intimidation, language access for ballots, and more. The LDF noted that five states have successfully passed state VRAs: California, Washington, Oregon, Virginia, and New York. Virginia was once one of the states with a history of voting discrimination that was subject to preclearance.
The urgency to make some progress in the wake of unprecedented challenges to the Voting Rights Act is palpable. “This is something that Congress needs to make as a top priority at the earliest possible moment that it can,” Proll said.
