A Bridge to Improved Voting Rights — Courts Play a Pivotal Role in the Voting Rights Act

As the country bids farewell to Rep. John Lewis, whose last journey across the Edmund Pettus Bridge came 55 years after leading the march from Selma to Montgomery to demand voting rights, there are renewed calls to pass amendments to the Voting Rights Act (VRA) to restore the protections the law provides to millions of Americans.

Across the country, voters’ ability to cast a ballot has faced persistent attacks, particularly in the wake of the Supreme Court’s decision in Shelby County v. Holder, which eliminated one of the law’s key voting rights protections.  As Rep. Lewis noted, the Voting Rights Act had been “hailed by historians as one of the most impactful and effective actions of Congress in the last half century . . . usher[ing] in millions of African Americans, Asian, Latino and Native Americans and many language minorities who had been shut off from the democratic process.”

Current legislative efforts to reinvigorate the Voting Rights Act, including amendments the House of Representatives passed in December 2019 that are currently pending in the Senate, are critical.  Nonetheless, we cannot forget that over the last half-century since a young John Lewis led that march calling for passage of the VRA. Federal courts have played just as integral a role as Congress or the Presidency in how the VRA functions, and often have interpreted the law’s protections narrowly or ruled parts of the law unconstitutional to limit voting rights.  The result has been to restrict, rather than expand, access to the ballot box.

Fifteen years after the law’s passage, for example, the Supreme Court narrowed the VRA’s protections by making it harder to challenge laws and practices that are obviously discriminatory. In City of Mobile v. Bolden, Black residents of Mobile, AL sued the city government, arguing that the city’s city commission elections disenfranchised the Black community. Since 1911, the city of Mobile elected its three city commissioners on an at-large basis, meaning that the white majority of the city controlled the city council and no Black representatives could get elected.

The Supreme Court held that the law required plaintiffs to show that the law was enacted due to intentional discrimination — that the city created this system with the intent to bar Black residents from being elected to the city council. This requirement was not present in the law. Section 2 of the Voting Rights did not mention that intentional discrimination was a requirement to show that someone’s voting rights had been violated.

Congress moved to overturn the Supreme Court’s ruling. In 1982, Congress, by a near unanimous vote, reenacted the Voting Rights Act for 25 more years with an amendment clarifying that Section 2’s bar on racially discriminatory voting laws did not require a plaintiff to show that the law was enacted with an intent to discriminate based on race. President Ronald Reagan ultimately signed the amended law, but did so over the strenuous objections of a young Department of Justice lawyer who helped lead the fight against changes to the law within the Reagan administration: future Supreme Court Chief Justice John Roberts.

This would not be Chief Justice Roberts’ only involvement with decisions about the Voting Rights Act. In 2013, Roberts wrote the majority opinion for the five conservative justices in Shelby County v. Holder that eviscerated the other primary protection of the Voting Rights Act: preclearance. Section 5 of the Voting Rights Act requires that certain states and localities receive approval from the federal government before enacting new voting laws. These areas were almost entirely located in the former confederacy with a long history of disenfranchising Black voters. Prior to preclearance, an estimated 23% of Black citizens nationwide were registered to vote. Within five years of the passage of the VRA, that number reached 61%.

Chief Justice Roberts’ opinion in Shelby County held that the formula used to determine which states had to get approval for their voting laws was unconstitutional because Congress had not changed the formula in almost 40 years. The conservative majority threw out the preclearance formula despite the fact that Congress had looked at the evidence only seven years earlier and chosen not to change the formula. The Reconstruction-era amendments under which the law was justified were not designed to punish for the past but to “ensure a better future,” he wrote. Chief Justice Roberts noted that because the law had been so successful “at redressing racial discrimination and integrating the voting process,” Congress should have adopted a new formula. In her dissent, Justice Ginsburg wrote that “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

In the ensuing years, Congress has failed to enact a new coverage formula to reinstate preclearance. In that time, the previously covered states have enacted hundreds of new laws making it harder to vote that have especially impacted communities of color.

The Supreme Court is not the only federal court to restrict the protections of the Voting Rights Act. Many of the laws enacted after the Shelby County decision involve voter ID requirements. Just this month, the Eleventh Circuit Court of Appeals dismissed a case brought by a civil rights organization in Birmingham on behalf of Black and Latinx voters arguing that Alabama’s voter ID law discriminated based on race. Despite evidence that Black and Latinx voters were nearly twice as likely to lack the required identification and that the plaintiffs in the suit faced high burdens in obtaining the required ID, two conservative judges held that the plaintiffs had not proven their case. In doing so, these two judges interpreted the Voting Rights Act to place an extremely high burden on plaintiffs to bring a claim, just like had happened in City of Mobile.

We can glean two interrelated lessons from the history of Voting Rights Act litigation.

First, Congress must be explicit in the language it uses to protect voting rights in any amendment to the law because conservative federal jurists can otherwise read in wide-ranging legal requirements that are not present in the original law, quite possibly with the intent of limiting voting. The current amendments of the Voting Rights Act pending in the U.S. Senate take steps to accomplish this goal.

Second, in part because of conservative attacks on voting rights, Congress and the American people must work to confirm jurists who will respect the right to vote and Congress’s intention to protect that most fundamental right.

Last week, the U.S. House of Representatives voted to rename the Voting Rights Act amendments it passed last year as the John R. Lewis Voting Rights Act. These amendments would institute a new preclearance formula, placing many areas of the country back under the highly successful preclearance system. Since the House passed the initial legislation last winter, Mitch McConnell has failed to bring the law for a vote in over 230 days. The Senate must act to restore this historic legislation.

But even if they do, the fight will not be over. We must pick up Lewis’ banner and find ways to block efforts to restrict the right to vote.  We must create “good trouble” by demanding that our courts be served by judges committed to the principle of equal justice for all and who interpret our Constitution and laws in ways that protect and preserve the right to vote.

Will Harrison is a Rosenthal Fellow for Alliance for Justice’s Building the Bench program.