Voter Discrimination Made Easy

The Voting Rights Act is meant to prevent racial discrimination against voters. The right is attacking and undermining this law, and that has never been more dangerous than it is now.

John F. Kennedy, who was assassinated 60 years ago, would not live to see Congress pass laws ending racial segregation in the United States, something he worked to achieve during his short presidency.

The Voting Rights Act went into effect about two years after Kennedy died on Nov. 22, 1963. It was meant to prevent the suppression of specific voter groups — as numerous states had previously done with Black voters. In some cases, states deployed explicitly racist laws to deprive the Black community of its right to vote, a right guaranteed by constitutional amendments in 1870 for men and in 1920 for women.

“It ought to be possible for American citizens of any color to register to vote in a free election without interference or fear of reprisal,” Kennedy said in his famous June 1963 radio address when he announced the civil rights reforms that would later become law under his successor. Kennedy, who was initially reticent about the subject out of fear he would lose southern votes, became the first president to name this a “moral crisis” of institutionalized racism. How would he react if he could see how severely voter equality, the important achievement of the civil rights movement, is threatened in the United States today?

The Basis for Lawsuits

On Monday, Nov. 20, a federal appeals court in St. Louis, Missouri, issued a ruling that could undermine the Voting Rights Act concerning the private individual’s right to sue under Section 2, one of the law’s most important provisions. Section 2 provides that no state may design its election laws such that they restrict or deny the voting rights of American citizens because of skin color or ethnicity, something that had been the case for decades until the civil rights movement fought for reform in the 1960s. Section 2 not only prohibits practices that intentionally discriminate against race, but also those that in effect lead to racially discriminatory results, even if not intended.

The Voting Rights Act provides the private right to sue for certain acts of voting rights discrimination. Cases have been brought by those affected or legal aid organizations that represent them. More than ever, in fact. In 2020, the Brennan Center for Justice counted at least 96 lawsuits in 26 states as well as the District of Columbia, the highest number in a single year.

In such cases, plaintiffs are dealing with issues including whether student ID cards suffice as proof of identity at polling stations, or whether people unable to write can get help filling out their ballot. A classic source of conflict involves gerrymandering in which election districts are remapped in favor of one party. This often affects the Black community particularly hard because such communities predominantly vote Democratic. Gerrymandering is at the heart of the Voting Rights Act’s Section 2.

For example, in Alabama, Republicans who hold the majority there assigned a major proportion of the state’s Black population — almost one-third of its entire population — to a single electoral district. The Supreme Court heard the case and held that the redistricting was discriminatory, forcing Alabama to draw a second election district with a majority of Black voters.

The Voting Rights Act Has Been Attacked by the Right Since Its Inception

Activist Evan Milligan was the plaintiff in the latest racial gerrymandering case that originated in Arkansas and was heard on appeal in St. Louis, Missouri. If the appellate court’s decision is confirmed, private voter discrimination actions will no longer be possible. After reviewing the text, history, and structure of the Voting Rights Act, the district court concluded that private parties cannot enforce Section 2. The court held that the power to enforce Section 2 belongs solely to the Attorney General of the United States. In the past 40 years, the court wrote, there have been 182 successful lawsuits with reference to Section 2 of the Voting Rights Act. The federal government brought only 15 of these cases.

So what is the point of this case? To give the Department of Justice a chance to win more cases? Hardly.

The Voting Rights Act is under attack by the right; it has been undermined and cut back since its inception. A central part of the law provides that states with a history of racially discriminating against voters must first receive permission from the federal government before changing their election laws. In 2013, the Supreme Court overturned this rule. As a result, more than 20 states introduced more restrictive election laws, likely contributing to an increase in the number of corresponding lawsuits by citizens and activists that peaked in 2020. Thus, Section 2 is all the more important. In line with the fundamental idea of the Voting Rights Act, it guarantees voters who are facing discrimination the opportunity to go to court and demand their right to free elections.

Those who find democracy and the rule of law obstructive are feeling threatened by this. They can thank one person in particular for the fact that courts rule in their favor: Donald Trump.

The decision by the appellate court in the Arkansas case is only the latest example of the impact that four years of Trump have had on case law in the United States. This appellate decision confirmed a lower court ruling, holding that there is no private cause of action for racial discrimination in voting and that only the government can file such a case. Both decisions were made by Trump appointees.

The Supreme Court, too, owes its predominantly conservative makeup to right-wing justices nominated by Trump.

The fact that an Alabama appellate court ruled in favor of voters and its holding was confirmed by the U.S. Supreme Court in June was an exception to recent court decisions, with the Supreme Court voting to confirm by a slim majority of 5-4. Justice Clarence Thomas, known as particularly leaning to the right in his views and recently the subject of a bribery scandal, previously said that Section 2 of the Voting Rights Act did not give private individuals or organizations the right to sue for voting discrimination based on race. His Supreme Court colleague and Trump nominee Neil Gorsuch agreed.

What If Trump Is Reelected?

The appellate decision in the Arkansas case is likely to go the Supreme Court. If it confirms the appellate court’s decision, it will not only affect millions of Americans who would lose the opportunity to challenge restrictions on their voting rights but it could also mean that voting rights are no longer a subject for the courts to consider at all.

If Trump is elected for a second term in 2024 — which is a real possibility at the moment — he would likely appoint an attorney general who might engage on many issues but certainly not a legal battle over discrimination against Black voters. Moreover, it’s doubtful whether disengaging from such racial discrimination against voters would provoke any broad public outrage, considering the fact that voting rights for a large portion of society are a self-evident privilege that doesn’t get much thought. Voter turnout in 2020, the highest turnout in a presidential election since 1900, was 66.8%.