The bizarre ruling that could destroy what’s left of the historic voting rights law

(Uncredited / Associated Press)

The bizarre ruling that could destroy what’s left of the historic voting rights law

Opinion piece, Elections 2024

Erwin Chemerinsky

November 29, 2023

If a decision handed down last week by a conservative federal appeals court is upheld, it will overturn what remains of one of the most important federal laws enacted in my lifetime, the Voting Rights Act.

A panel of the 8th Circuit Court of Appeals ruled that no one but the federal government can bring suit to enforce a key part of this vital statute. And as the dissenting judge noted, only 15 of the 182 successful lawsuits over the past four decades were brought solely by the Justice Department.

The Voting Rights Act has been remarkably effective in countering the numerous laws and practices that Southern states have adopted to keep Black people from voting since the end of Reconstruction. Turnout among black voters in Mississippi rose from 6

% per cent

in 1964, the year before the law came into effect, to 59

% per cent

in 1969.

Section 2 of the Voting Rights Act prohibits state and local election practices and systems from discriminating against voters of color. Congress strengthened the provision in 1982 so that proof of intentional discrimination would no longer be required; it is sufficient to demonstrate a discriminatory effect.

Even under the conservative Roberts court, Section 2 has provided crucial protections against racial discrimination in voting. For example, this year in the case of Allen v. Milligan, the court ruled that Alabama had violated the Voting Rights Act by drawing congressional districts.

Alabama has a population of 27

% per cent

Black, but the state legislature had drawn up the congressional districts so that only one of the six had a black majority. The court ruling that the districts violated Section 2 led to a new map with two districts that were majority black.

However, under the 8th Circuits 2-1 ruling, private individuals and groups such as the ACLU and the NAACP Legal Defense Fund could not sue to enforce Section 2. Hundreds of such lawsuits have been filed, and many have been tried by the Supreme Court. among them Allen versus Milligan without being questioned on these grounds.

This latest threat to the Voting Rights Act comes a decade after the Supreme Court overruled another key aspect of the law, Section 5. Under that section, jurisdictions with a history of racial discrimination in voting were required to adopt the


approval from attorneys general before making significant changes to their election systems.

The court declared this prior approval requirement unconstitutional in 2013, with ruling 5


4 that it violated the principle of equal state sovereignty by excluding the Southern states from the restriction. States like North Carolina and Texas responded by quickly implementing discriminatory election practices that had previously been blocked.

The latest case occurred in 2021, when the Arkansas NAACP and others challenged the new state House districts. The plaintiffs alleged that Arkansas’ map diluted black voting power in violation of Section 2, and that five additional black majority districts needed to be drawn to fairly represent the state’s black population.

The majority opinion from 8th Circuit Court Judge David Stras, a Trump appointee, concludes that only the United States government can bring such lawsuits, contradicting 58 years of practice since the Voting Rights Act became law . Supreme Court Justice Clarence Thomas, for whom Stras clerked, raised this possibility in his dissent in Milligan, but the prospect of such a radical change in the law was not taken seriously by many. In fact, none of the parties in the Arkansas lawsuit even raised the issue: the U.S. District Court, where the case was first heard, improperly raised the issue on its own.

At best, the Justice Department has the resources to file only a handful of Section 2 lawsuits per year. At worst, especially under a conservative administration, it will achieve nothing.

In his dissent to the appeals court’s decision, Chief Judge Lavenski Smith correctly described the ruling as a threat of major unrest. Rights so fundamental to self-government and citizenship, he wrote, should not depend solely on the discretion or availability of government agents for protection.

As Smith noted, the Supreme Court declared more than two centuries ago, in Marbury vs. Madison, that where there is a violation of a right, there must be a remedy. If the Supreme Court does not reverse the 8th Circuit’s decision, there will be little remedy for violations of one of our most important rights.

Erwin Chemerinsky is a writer for Opinion and dean of the UC Berkeley School of Law. His latest book is Worse Than Nothing: The Dangerous Fallacy of Originalism.


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