Many citizens are trying to process Trump’s authoritarian plans and those of his allies. Meanwhile, a cornerstone of democracy, the right to vote, is once again being snatched from under our feet.
In 1870, Congress passed the 15th Amendment, which provided Blacks with the constitutional right to vote. But conservatives effectively blocked that right for many Blacks for nearly a century—until the Voting Rights Act of 1965.
Despite orders from the Supreme Court and other courts, several states created rules and procedures that denied or limited opportunities to vote for Black citizens, such as poll taxes and literacy tests.
The 1965 Voting Rights Act (VRA), considered the most important of the civil rights acts of the 1960s, opened Black participation in elections and politics. Section 5 of the law required jurisdictions with a history of discrimination to obtain approval from the Department of Justice or a court before changing voting rules, a process known as preclearance.
Section 2 of the law allowed individuals to sue — with or without the assistance of the Justice Department — to undo existing laws and procedures that denied equal political opportunity to voters to elect their candidates of choice. However, Court decisions are eroding these protections.
The end of the VRA began in 2013 with a SCOTUS decision authored by Chief Justice Roberts. Roberts had been a law clerk for Justice William Rehnquist, who had made a reputation in Arizona for opposing voting rights for African Americans. Rehnquist publicly opposed the Voting Rights Act of 1965 and the Civil Rights Act of 1964. Thus, his office became a hotbed of young conservative lawyers, including Roberts.
Later, working in the Justice Department, Roberts pressed his arguments against reauthorizing the VRA. Fitting the bill that conservatives wanted in a Supreme Court Justice, Roberts was elevated to the Supreme Court and made Chief Justice.
The critical part of the VRA required specified jurisdictions to get Justice Department or court approval before changing their voting procedures. In Shelby v Holder in 2013, Chief Justice Roberts took full advantage of his position to lead the Court against the VRA and to write the opinion that gutted these preclearance provisions of the Act.
The law had been a hugely successful shield against schemes that limit or dilute the voting power of communities with a history of racial discrimination. In the years after the Voting Rights Act’s passage, the disparity in registration rates between White and Black voters dropped from nearly 30 percentage points in the early 1960s to 8 percentage points just a decade later. Based on this success, the Voting Rights Act was reauthorized multiple times. In 2006, the reauthorization passed both houses of Congress with broad bipartisan support, passing unanimously in the Senate.
But things changed with the right-wing movement of politics and the courts. In Shelby County v. Holder, the conservatives effectively dismantled Section 5, eliminating the critical preclearance requirement. Without this “preclearance” regulation, the revival of discriminatory tactics was immediate. In the last 10 years, at least 29 states have passed 94 laws that make it more difficult to vote, particularly for communities of color.
And to make matters worse, just a few days ago, a federal Appeals Court panel ruled that only the U.S. government, not private parties, can sue under the Voting Rights Act barring racial discrimination in voting. Notably, Donald Trump appointed all three judges.
Private parties file most Voting Rights Act cases. So, if this Appeals Court ruling is allowed to hold in the appeal to the Supreme Court, Section 2 will be gutted, and the VRA will be close to null and void.