The right to vote free of racial discrimination remains under assault.
The Voting Rights Act (VRA), initially passed in 1965, was the great triumph of the civil rights movement. For decades, it provided African Americans legal protections for the right to vote. Now, right-wing activist judges have enlisted in the partisan effort to gut the law.
Section 5 of the VRA requires pre-screening by the Justice Department of changes to voting rights in states that had suppressed the right to vote during the 100 years of segregation. Section 2 prohibits actions that would deny or abridge “the rights of all citizens to vote on account of color or race.” It applies nationally and is permanent.
The Voting Rights Act initially enjoyed bipartisan support. Under Richard Nixon, however, Republicans adopted what they called the “Southern strategy,” seeking to gain partisan advantage in the wake of the civil rights movement by grounding the party in the embittered whites across the South. They became vocal opponents of civil rights – and African Americans began voting overwhelmingly for Democrats.
So right-wing Republicans launched an assault on voting rights, with partisan judges taking the lead. A first major step was the astounding decision in Shelby County v. Holder in which Chief Justice
Roberts, writing for a partisan majority of judges, gutted Section 5 of the Voting Rights Act, ignoring precedent, legislative history, a continued record of abuses, and virtually unanimous congressional support for renewal.
Now, two activist conservative judges in a divided Court of Appeals in the 8th Circuit have declared that the “text and structure” of Section 2 of the Act prohibits citizens from bringing action to enforce it. The decision ignores history, binding precedent, and congressional intent. If upheld by the right-wing majority on the Supreme Court, the decision would–essentially disembowel the Voting Rights Act.
This judicial wilding has had a pernicious effect. After Roberts’ decision gutted section 5, Republican state legislatures rushed to pass a flood of voter sup- pression measures – partisan gerrymandering, tar- geted purges of voting roles, discriminatory voting requirements, discriminatory impediments to voting, and more. Now, if Section 2 is neutered, the suppres- sion will get worse. This country has suffered this abuse before. After the Civil War, the Congress passed the 15th Amendment to guarantee the right to vote to the freed slaves, outlawing discrimination on the basis of race or color.
What followed was a reign of terror across the South, as the Democratic Party in the South – the party of the plantation class – joined in the systematic effort to deprive Blacks of the right to vote. Corrupt and reactionary justices ratified or ignored the suppression. Segregation – legal apartheid – became the law of the land. It required the civil rights movement – culminating 100 years later – to overturn segregation and pass the Voting Rights Act to finally begin to revive the right to free elections without dis- crimination.
Donald Trump’s Big Lie about the 2020 election posed a direct threat to our democracy. That threat was stymied in large part because of courageous public officials and judges, many of them Republicans, who refused to violate their oaths of office. Trump lost in court after court. Republican state officials refused to join the scheme, his own vice president and Justice Department–refused to go along.
Where Trump failed, increasingly partisan and reactionary judges have been far more successful in what appears to be a systematic campaign to undermine free elections. Conservative justices joined in opening the floodgates to money in politics, including dark money corporation donations. They’ve given a free pass to partisan gerrymandering, which Republicans in states like Wisconsin have used to lock in majority status, even as they lose the majority of votes in election after election. With brazen dis- regard for precedent, law, and congressional intent, they have slowly gutted the Voting Rights Act and stripped away protections against discriminatory election laws.
This systematic assault on democracy – through the courts, state legislatures, and local authorities – won’t be overturned in one election.
It will require a renewed democracy movement – in the legal community, in the press, in the legisla- tures, in the election booth, and in the streets. The partisan decisions of right-wing activist judges can- not stand against a growing movement for democ- racy.
Ben Franklin famously said the Founders had given us “a republic if you can keep it.” It took the blood and sweat of generations, the bloodiest war in American history, to include all Americans in that Republic. Now, the question is posed once more: Will we keep it?
