S.C.O.T.U.S’s One-Thousand Cuts to the Voting Rights Act & How We Can Stop the Bleeding!
An op-ed highlighting how the Supreme Court of the United States has incrementally cut the provisions of the Votings Rights Act and what we can do now to protect voting rights.
By: Ian L. Courts, Esq.¹
“Democracy is a process, not a static condition. It is becoming rather than being. It can be easily lost, but it's never fully won.” Judge William “Bill” H. Hastie.
Judge Hastie’s words spoken over a half-century read loud and true — even today. I chose Judge Hastie’s words because he was one of the instrumental civil rights pioneers whose litigation and legal service assisted in shaping a more equalitarian legal system. My central premise in this piece is this, American Democracy is only as viable as the people’s participation in it. How do “the people” participate in American democracy? By giving a damn and voting! However, the people cannot exercise their right to vote in a system where the laws restrict and make it almost impossible to exercise the right to vote. The United States Supreme Court, led by Chief Justice John Roberts, has taken great strides to limit the right to vote by its rulings in Shelby County v. Holder (2013); Rucho v. Common Cause (2019); and its latest laceration, Brnovich v. Democratic National Committee (2021). In this piece, I will briefly describe the reason for the Voting Rights Act, the judicial doctrine of “one person, one vote,” how the Roberts’ Court has disemboweled the Votings Rights Act, and what we can do about it!
Jim Crow and the Racial Caste System
America in the early 20th century was deeply entrenched in Jim Crow segregation and apartheid. For the most part, Black Americans and White Americans lived separate lives divided along cultural and legal lines. America’s apartheid system manifested itself through many legal regulations that stymied Black Americans from exercising their 15th Amendment right to vote. These voting restrictions were poll taxes, grandfather clauses, literacy tests, citizenship exams, civics quizzes — to all-out intimidation by force, i.e., burnings and lynchings. For much of America’s history, race and voting rights have been intertwined, whether de jure or de facto. The Voting Rights Act of 1965 authorized the federal government to oversee federal elections in many states that were formerly a part of the Confederacy and those that demonstrated a history of racial discrimination in its laws toward African Americans. Moreover, the act endowed the federal judiciary with authority to ensure the Act's provisions, which reaffirmed the law enshrined in the 15th Amendment, were protected and enforced. We must be honest about our country’s history to properly and critically examine our society today.
One person, One Vote
“One person, One Vote” was a judicial doctrine created in Baker v. Carr (1962) and Reynolds v. Sims (1964). In Baker, the Supreme Court opened the federal courts for voting rights business, holding that redistricting qualifies as a judicial question. This decision moved the focus of voting rights from State Legislatures to the federal courts. Moreover, in Reynolds v. Sims, the Court further articulated its newly created “one person, one vote” doctrine by requiring states to create legislative districts with nearly an equal population as practicable. The doctrine of one person, one vote ensured for many years that states would consider the voting rights of their citizens when crafting their electoral districts; and if they didn't, they would be subject to judicial sanction.
Roberts’ Court & the Frankenstein-ization of the Voting Rights Act
Under Chief Justice John Roberts, the Supreme Court began restricting and down-right eliminating provisions of the 1965 Voting Rights Act and the doctrine of “one person, one vote” with its decision in Shelby County v. Holder.
Shelby v. Holder (2013)
In Shelby v. Holder, SCOTUS struck down section 5 of the voting rights act by holding that it no longer was needed or required because “racial discrimination did not exist.” Section 5 required states with a demonstrated history of racial apartheid to have their redistricting plans reviewed and approved by the federal courts. Chief Justice Robert’s decision was woefully unrealistic and laughable and tried to hide its intent — to restrict the power of federal courts to protect voting rights. SCOTUS’s Shelby decision was the first cut that greatly debilitated the votings rights act and doctrine of “one person, one vote.” However, as deadly as the Shelby laceration was to the Voting Rights Act, more lacerations were to come.
Rucho v. Common Cause (2019)
In Rucho, the Court held that despite a state’s showing of “surgical precision” racial discrimination in redistricting, redistricting was beyond the justiciable purview of the federal courts. As much as Baker in 1962 opened the door of federal courts for voting rights cases, Rucho slammed the door shut and gave another deadly cut to the already bludgeoned Voting Rights Act.
Bronivich v. Democratic National Committee (2021)
This year, the Robert’s Court gutted Section 2 of the Voting Rights Act, which bars states from passing redistricting and voting rights laws that discriminate based upon race. Arizona imposed restrictions that allowed ballot-harvesting and out-of-precinct voting. The DNC argued that these laws had a chilling effect on the state’s African American population. The Roberts Court laughed the DNC out of court and then proceeded to gut the Voting Rights Act even further by upholding laws that clearly target and impact minority voting rights.
The Roberts Court in each of these cases demonstrated its contempt for federal courts being open forums for discriminatory redistricting cases and further restricted voters’ access to judicial redress for political harm. The Roberts Court has so far succeeded in not only gutting the Voting Rights Act but also overturning the precedent outlined in the judicial doctrine of “One person, one vote.” For over half a century, our federal judiciary has been the defenders and protectors of voting rights; however, within the last decade, the Court has shifted to being cold, deaf, and dumb to voting rights challenges. Is all lost? Is our democracy finished? NO! well, at least not yet; we still have other ways to protect the right to vote.
Protecting the Right to Vote
One of the least utilized avenues of voting rights protections is our state courts. State Courts have demonstrated that they are open to hearing voting rights cases brought under the provisions of the state’s constitution. Moreover, state courts have demonstrated a willingness to strike down state redistricting plans that are discriminatory. See The League of Women Voters v. the Commonwealth of Pennsylvania (2018), where the Pennsylvania Supreme Court struck down the state’s gerrymandering plan that targeted African Americans. See also, Rucho v. League of Women Voters of North Carolina (2018), where a three-judge panel struck down the state’s discriminatory redistricting map. State Courts are increasingly becoming an avenue for voter protection and voting rights justiciability.
John Lewis Voting Rights Act
The John Lewis Voting Rights Act would reinstate the gutted provisions (Sections 2, 4, and 5) of the Voting Rights Act and authorize the Department of Justice to investigate alleged violations. Moreover, it would reinstate jurisdiction via federal statute to federal courts to review voting rights cases. Essentially, the John Lewis Voting Rights Act revives and restores the eliminated provisions of the Voting Rights Act of 1965.
Enact Statewide Voting Rights Legislation
Activists and policymakers must get busy crafting, proposing, and passing voting rights protections on state levels. Voting is a local action and falls under the supervision of the state government. Lasting voting rights protections will not come federally but via state legislatures. We must call on our state representatives and senators and demand that they propose legislation that counteracts proposed voting restrictions and expands the right to vote within the state.
Lawsuits by State Attorneys Generals and the Biden Department of Justice
State Attorneys Generals have regularly defended the public from actions that harm or hinder the public’s rights. It is important that the State Attorneys Generals' offices began to seriously view voting rights as public safety rights and join with the Department of Justice to protect the public’s right to vote. Lawsuits by coalitions of State Attorneys Generals pressure state governmental actors, legislatures, and federal courts. A strong bipartisan coalition of state attorneys generals could signal that voting rights will be routinely brought before state and federal courts and further that it is a serious area in which the public has a vested interest.
The Bully Pulpit
President Joe Biden and Vice President Kamala Harris can utilize the Executive Branch's power to speak out against voter suppression, encourage federal voting rights legislation, and equip and encourage states with money and infrastructure to protect election integrity and expand the people’s rights to vote and voting rights access. President Joe Biden yesterday spoke to the country from Independence City (aka Philadelphia), rallying Americans around a moral admonition to resist modern-day Jim Crow voting rights restrictions. Vice President Harris announced last week a $25 million investment in registering people to vote and getting them to polling places. The Bully Pulpit must be used to rally Americans around the importance of now action on voting and voting rights.
Register & Vote
Finally, we must register ourselves, our family members, friends, colleagues, and yes, even our enemies to vote. Protecting voting rights ensures that people can and DO vote.
Our democracy is at stake; we must act now to continue to vote later.
: About the Author: Ian Courts is a young millennial attorney with expertise and a passion in American and international law and politics. Ian received his BA in Political Science from the University of North Carolina at Greensboro in 2017, in 2020 he received his J.D. from North Carolina Central University School of Law, and in 2022 Ian received his LLM in International Criminal Law and Justice from the University of New Hampshire School of Law. Ian lives in Philadelphia where he is an appellate lawyer and the proud fur-dad of two American Cocker Spaniels.