Court ruling puts Voting Rights Act on life support
The Voting Rights Act of 1965 didn’t die last week. Its casketed remains weren’t sent to Arlington National Cemetery to be buried alongside great and historical figures. But its epitaph could have been carved into a marble headstone:
Voting Rights Act Aug. 6, 1965-July 1, 2021 Gone Too Soon
The birth date of the Voting Rights Act, or VRA, was the glorious day President Lyndon Johnson signed it into law. Its death date was when the U.S. Supreme Court ruled 6-3 in favor of Brnovich v. Democratic National Committee, which upheld a pair of Arizona voting restrictions.
In doing so, the court severely weakened the VRA’S Section 2, which prohibits voting laws and procedures that discriminate based on race.
This decision didn’t kill the VRA, but it has placed it in a vegetative state, rendering it unable to stop the tide of voter-suppression legislation rising from Republican-led statehouses across the country. The heart of the VRA was removed by another Supreme Court decision, Shelby County v. Holder in 2013, that ruled unconstitutional Section 4, which required federal preclearance for specific local and state governments to change voting laws. Section 5, which sets out the preclearance requirement, was left standing, but it lacks any authority without Section 4.
Those provisions were in place in specific states — including Texas — because those states have a history of racial discrimination in voting.
Writing for the court in 2013, Chief Justice John Roberts argued that because times had changed for the better, preclearance was no longer needed. However, he pointed to Section 2 as a safeguard: “Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in Section 2.” Yet last week in the Arizona case, Roberts sided with the majority to limit the scope of Section 2 to invalidate new voting measures.
The Arizona laws threw out votes cast in the wrong precinct and only allow a voter’s relative or caregiver to return a mail-in ballot. In January 2020, the 9th Circuit Court of Appeals struck it down because it discriminated against Black, Native American and Latino voters.
In arguments before the court, a lawyer for the Republican National Committee admitted that eliminating those restrictions “puts us at a competitive disadvantage relative to Democrats.”
Writing for the majority, Justice Samuel Alito didn’t deny the disparity but said it “does not necessarily mean that a system is not equally open or that it does not give everyone equal opportunity to vote.”
Eight years ago, in the wake of Shelby, Republican state legislatures unleashed scores of voting changes that were disproportionately restrictive for voters of color. But this was nothing compared to the votersuppression bills springing up like kudzu since the 2020 presidential election, cultivated by defeated former President Donald Trump’s lie of widespread voter fraud.
The Arizona decision affirms what has been clear for some time — that the only way for Democrats to stop these anti-democratic measures is legislatively through Congress. Two weeks ago, Senate Republicans refused to move the ambitious For the People Act forward for debate.
The John Lewis Voting Rights Advancement Act is narrower in scope, but it would restore what was struck down by Shelby in 2013. Neither piece of legislation will advance with the filibuster in place, requiring 60 votes for passage instead of a simple majority.
With no relief from the Supreme Court from the assault in state legislatures by Republican majorities and with key legislation in a chokehold by the congressional Republican minority, the crown jewel of the civil rights movement, the Voting Rights Act of 1965, is effectively dead.
As Justice Elena Kagan wrote in her passionate dissent in the Arizona case: “What is tragic here is that the court has (yet again) rewritten — in order to weaken — a statute that stands as a monument to America’s greatness and protects against its basest impulses. What is tragic is that the court has damaged a statute designed to bring about ‘the end of discrimination in voting.’ ”
It’s too early for the Voting Rights Act to be buried to rest in peace. Somehow, it must be revived.