The Voting Rights Act is in serious trouble — again

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By   / Originally published in theGrio

Editor’s note: The following article is an op-ed, and the views expressed are the author’s own. Read more opinions on theGrio.

Once again, voting rights are under attack, and a fatal blow to the already weakened Voting Rights Act could be underway. The U.S. Court of Appeals for the Eighth Circuit recently ruled that only the federal government — and not an individual or organization — may bring a lawsuit alleging racial discrimination under Section 2 of the Voting Rights Act.

The appeals court upheld the ruling of Judge Lee Rudofsky in Arkansas State Conference NAACP v. Arkansas Board of Apportionment, a case that alleged racial gerrymandering in Arkansas. Specifically, the plaintiffs claimed that the state’s voting maps were racially gerrymandered because Black voters are over 16% of the population of Arkansas, yet the state maps contain only 11% majority-Black districts. Judge Rudofsky, a Trump appointee, ruled that only the U.S. attorney general may file a racial gerrymandering claim, not a private party.

We have a problem here if Black citizens have to rely on the federal government to fight for voting rights in federal court. What if the attorney general is appointed by a president who is hostile toward Black voting rights? If people and civil rights organizations are blocked from using the Voting Rights Act to protect themselves from racial discrimination — and the attorney general does not believe in voting rights for everyone and refuses to act — where does that leave the people?

This decision is more proof that even out of office, Donald Trump continues to hurt Black voters and other groups who face racial discrimination at the ballot box. It takes very little awareness to understand that when the next Republican president — for example, a President DeSantis or President Trump, perish the thought — is in office, Black folks are out of luck.     

The Voting Rights Act was enacted to protect against Jim Crow schemes to dilute the voting power of Black people and other marginalized groups. Section 2 of the VRA is important because, reflecting the language of the 15th Amendment, it bans voting procedures and practices that discriminate by race, color or certain language minority groups. This is why the recent attacks on Section 2 matter.

In 2021, the Supreme Court looked over what remained of the carcass of the Voting Rights Act after it was gutted in 2013’s Shelby v. Holder decision and, for the first time, upheld the denial of voting rights under Section 2. In this case, the court upheld two Arizona laws — one banning absentee ballot collection by anyone except a caregiver or relative, and the second throwing out ballots cast in the wrong precinct. An appeals court had struck down both laws because of the impact on voters of color and the absence of voter fraud invoked to justify the laws, but the 6-3 conservative Supreme Court majority upheld the laws. Because that’s what they do.

The Republican assault on voting rights is all a numbers game, a matter of basic math. With their wholly unpopular policies geared towards a dwindling base of regressive white voters, the GOP has decided to keep their atrocious ideas. However, staying in power requires the MAGA party to ditch democracy and restrict voting rights. 

”Everybody shouldn’t be voting,” they say, using red herrings and subterfuges like “voter fraud” to make their case. Besides, the MAGA faithful believe the white man is an endangered species, and they don’t want to be replaced by melanated people in the voting booth. Neither did Bull Connor, Ross Barnett, Geoge Wallace or any number of Jim Crow segregationists who feared their political days were numbered if Black people got their voting rights.

While there is hope, even an expectation by some because of legal precedent that the Supreme Court will overturn this latest decision and uphold Section 2 of the Voting Rights Act, we can’t be so sure, can we? With the Dobbs decision — overturning Roe v. Wade and the right to an abortion after 50 years — as exhibit 1, the Supreme Court has demonstrated that it will do what it wants to do and when it wants to do it — legal precedent be damned. For all of the conservatives’ talk about originalism and precedent, the extremist justices of the high court majority will do mental gymnastics and risk hypocrisy and inconsistency in service to white supremacy.

That point remains true even after the Supreme Court protected Section 2 of the Voting Rights Act in June. In Allen v. Milligan, the court upheld Section 2 and struck down Alabama’s congressional maps. Voting 5-4, the court rebuked the state of Alabama and its efforts to stop the Voting Rights Act from banning racist gerrymanders who sought to dilute Black voting power.

That decision, written by Justice John Roberts, will give Black people another district in Alabama and could boost Black voting rights in other states as well. Perhaps Roberts is playing the long game and throwing a few bones as a public relations ploy to salvage his reputation and the legitimacy of the corrupt institution he leads. However, lest we are inclined to call Roberts a hero, it is important to understand that Roberts is no friend of civil rights and no friend of Black people outside of Clarence Thomas.

As Politico has amply laid out, Justice Roberts has spent his decades-long legal career attacking the Voting Rights Act, including Section 2 — from his clerkship with the racist Justice William Rehnquist to his time at Reagan’s Justice Department to his current job on the nation’s highest court. The man has been at this for a long time.

After all, Roberts wrote the 2013 opinion in Shelby v. Holder, which gutted the Voting Rights Act by neutralizing the preclearance requirement of Section 5. This enforcement mechanism required states with a history of Jim Crow-style tactics and policies against Black voters — such as voter intimidation, threats and disenfranchisement — to seek federal permission before changing their election laws. It was after this ruling that many Republican-controlled states began passing voter suppression laws that we’re still dealing with today.

Will the Supreme Court save what’s left of the Voting Rights Act? Time will tell. But as long as hostile Republicans are in power and in a position to gut our rights, the trajectory always looks bleak.

David A. Love is a journalist and commentator who writes investigative stories and op-eds on a variety of issues, including politics, social justice, human rights, race, criminal justice and inequality.

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