by Mahogane Reed
The Voting Rights Act of 1965 is arguably the most important and impactful piece of federal civil rights legislation ever enacted. It was won on the backs and with the blood of civil rights leaders and allies determined to gain unfettered access to the ballot box for Black Americans—a right that was vehemently denied to Black people for nearly a century following the ratification of the 14th and 15th Amendments.
The two most important provisions of the Act—Section 5, which requires states with a history of voting discrimination to obtain approval from the federal government before enacting new voting laws, and Section 2, which prohibits states from enacting voting laws, policies, and procedures that result in a denial or abridgment of the right to vote—have been crucial to staving off substantial burdens and barriers to the right to vote.
But in the past decade, the Voting Rights Act has been under assault and those very provisions have suffered substantial curtailment by the U.S. Supreme Court.
In 2013, the Supreme Court effectively nullified Section 5 with its decision in Shelby County v. Holder, thus giving states with a known history of voting discrimination a green light to pass new, discriminatory voting laws without federal oversight and approval.
The Shelby County decision left Section 2 as the primary provision for challenging discriminatory voting laws. But two weeks ago, that provision, which historically has been a bulwark against voting laws that disproportionately burden Black voters and other voters of color, was curtailed.
In Brnovich v. Democratic National Committee, the Supreme Court considered whether two provisions of Arizona’s voting laws were permitted under Section 2.
The first was a provision that completely rejected all in-person ballots cast in the wrong precinct on election day, including in federal elections. The second was a law that restricted third parties from returning absentee ballots for non-family members and people not under their direct care and levied a criminal penalty.
The U.S. Court of Appeals for the Ninth Circuit previously held that both policies violated Section 2 because evidence showed they disproportionately denied or abridged the right to vote of voters of color.
The Supreme Court disagreed. In a 6-3 decision, the court held that the challenged laws imposed only “modest” burdens on voters of color in an election system that the court says was otherwise “equally open” to all voters, and therefore did not violate the Voting Rights Act. In reaching its holding, the court purported to limit its decision to the voting policies at issue in the case. But it also announced a new set of “guideposts” to govern future challenges to voting laws that deny or abridge the right to vote.
These new guideposts no longer focus the court’s inquiry on how the “social and historical conditions” created by race discrimination interact with voting laws to inhibit Black voters’ ability to access the ballot box. The court’s dominant focus is now whether any single voting law or policy burdens the right to vote for a large enough contingent of minority voters.
A Precarious Moment for Voting Rights
The court’s decision could not have come at a more precarious time for voting rights, as state legislatures across the country are introducing, pushing, and passing increasingly aggressive voting laws that restrict access to the ballot box.
So far this year, at least 19 states have enacted 29 new laws that restrict voting access; many of these new laws will disproportionately burden Black voters and other people of color.
This trend promises to continue as more states consider changes to election laws and policies that will suppress votes, often under the guise of “election integrity.” While civil rights organizations like the NAACP Legal Defense Fund (LDF) continue to challenge many of these laws, litigation and advocacy are slow processes. In the meantime, millions of voters will be disenfranchised during crucial elections. This is by design.
Congress Must Act
Voting rights advocates are still digesting the Brnovich decision and assessing its implications for pending and future voting rights litigation. But one thing is clear: Voting rights remain under attack, and the Supreme Court is not poised to meaningfully intervene.
Thus, the focus is now on Congress. Without federal voting rights legislation, the Brnovich decision will shape the next decade or more of efforts to protect the right to vote. That is why it is critical that Congress act on and pass robust and comprehensive federal voting rights legislation like the For the People Act and the John Lewis Voting Rights Advance Act.
These bills provide sweeping protections against the very laws states like Georgia and Florida have recently enacted and will increase our electoral system’s accessibility to all.
Absent action by Congress, it will be increasingly harder to defend voting rights— and consequently, our democracy.
Mahogane Reed is the John Payton Appellate and Supreme Court Advocacy Fellow at the NAACP Legal Defense Fund. She previously practiced complex commercial litigation at a boutique trial firm in Houston, Texas, and clerked on the U.S. Court of Appeals for the Fifth Circuit and the U.S. District Court for the Middle District of Louisiana. Mahogane received her J.D. and D.C.L. from the Paul M. Hebert Law Center at Louisiana State University, where she was an Articles Editor of the Louisiana Law Review. She received her B.S. in Political Science from Louisiana State University. Mahogane is a member of the Louisiana and Texas state bars. She is not admitted to practice in D.C. and is working under the supervision of members of the D.C. bar.