Friday, January 27, 2023

How the Voting Rights Act ended up in the Supreme Court

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While we are months away from any ruling, many voting rights advocates have their eyes on the Supreme Court, which is likely to rule on a few issues this term that could challenge the power of the Voting Rights Act.

The law was passed and signed in 1965, but it was a long time in the making. The roots go back to the end of the reconstruction. Federal troops withdrew from the South after the Compromise of 1877, which marked the nadir of race relations in America. Jim Crow laws were enacted, the Ku Klux Klan came to power, and many of Black people’s attempts to vote and exercise full citizenship met with violence. That violence continued well into the 1960s.

After the VRA was passed, black voter registration in the South soared, and during the nearly six decades since its enactment, the legislation has both strengthened and weakened. According to Case Western Reserve School of Law professor Atiba R. Ellis, “The way the Voting Rights Act has changed has in some ways been a conversation between Congress and the Supreme Court.”

In this week’s episode of The weed – cafemadrid’s podcast for politics and policy discussions – we jump into the Weeds Time Machine with Ellis and go back to the circumstances that brought us the VRA, and look forward to what the policy might become in the near future.

Below is an excerpt of our conversation, edited for length and clarity. You can listen to The weed On Apple podcasts, Spotify, Stitcher or wherever you get podcasts.


Atiba R. Ellis

Merrill [v. Milligan] is now before the Court, and it is a redistribution plan in Alabama. Alabama went through its redistricting process and drew one district for its majority black U.S. House of Representatives. The plaintiffs here are basically arguing that Alabama crammed black voters into that district when it should have attracted more counties that were predominantly African American. And thus [the plaintiffs say] that this is contrary to Article 2 of the Voting Rights Act.

So this has the potential to completely change the standard for racial vote dilution cases under the Voting Rights Act and potentially make it a lot harder for plaintiffs to make their claims.

Jonquilyn Hill

That’s not the only Supreme Court case involving voting that could affect the voting rights bill due this summer, is it?

Atiba R. Ellis

Another very important matter, even if it is not directly about the law on voting rights, [that] would nevertheless have consequences for the VRA is called a case Moore to Harper. And this case comes from North Carolina, where the North Carolina General Assembly passed a different set of voting rules after a history of voting cases in which both federal and state courts have stalled North Carolina’s efforts. But this time, the Supreme Court of North Carolina strikes down the General Assembly rule, and the General Assembly then goes to the U.S. Supreme Court, arguing that the independent state legislature theory should be adopted by the U.S. Supreme Court and with it excludes state courts from being able to decide what the state legislatures do with respect to federal election rules.

So they say, well, if it’s up to the states, and the text of the electoral clause in Article 1 of the Constitution says that the legislature will make the rules. They say you have to take that literally, like in the legislature and no one else can make the rules.

Jonquilyn Hill

But it is the job of the court to interpret the rules they make. That’s why we have three locations. This is why we have our executive, our legislative and our judiciary. And isn’t the state court technically part of the state?

Atiba R. Ellis

In my opinion — and, full disclosure, I co-authored a briefing on the Moore to Harper case – our argument was that this makes no sense. There are branches of government to balance one’s work. And so for the legislature to have all the power and, depending on which version of the independent state legislature theory you look at, it could be just the state legislatures and maybe the federal courts, or maybe just the Supreme Court, but not the state courts themselves. Does it make sense that a state court with its state constitution that says the state courts can oversee the legislature would ignore all of this? An overarching, [this is an] ahistorical and nonsensical interpretation of the Constitution.

Jonquilyn Hill

What does the future of voting in America look like without the Voting Rights Act — or without one of its teeth, which could very well happen after this next Supreme Court hearing?

Atiba R. Ellis

I think voting becomes very challenging or very advanced depending on what state you are in. Because the pattern that seems to be playing out today is one of certain states wanting to take more and more initiatives, driven by the myth of voter fraud. and desiring to make the rules tougher, to make the rules more rigid and heavy. Some states have even recently passed rules requiring in-person voting only.

The challenge is with the stricter rules being driven by voter fraud, does that make it too hard for people without the resources to overcome these hoops to participate? And to me, that mirrors the Jim Crow issues we talked about: the nadir of voting rights. This is an era when a third of the country’s population was unable to vote effectively because there were too many rules that took advantage of the weaknesses of that population. And all that discrimination fell largely along the lines of race. Does something like this repeat itself? Maybe not in the Jim Crow apartheid sense, but I would think any repetition of that could be problematic, and if history teaches us anything, a lot of that will fall in the direction of race.

And, of course, the irony is that depending on which state you look at, there’s also progress on voting rights, right? There are some states that have embraced mail-in voting, drop boxes, same-day registration, more moderate versions of voter ID, and the like. And so I wonder if maybe the future could be a new “separate but equal” kind of voting card across the country, and the ease with which you can vote, the ease with which you can participate in democracy depends on which state you are in and what the agenda of your legislature is.

Jonquilyn Hill

I wonder what parallels there are between the era when we got the Voting Rights Act and our current political landscape. Because it is different in many ways. But in many ways it feels very similar.

Atiba R. Ellis

On the one hand, there’s a lot of what I like to think of as the hyper-regulation of voting in the period just before the passage of the Voting Rights Act. You had a list of Jim Crow rules that prevented people from voting. And today we arguably have the emergence of a different set of rules, driven by concerns about voter fraud that don’t exist: strict voter identification laws, more aggressive voter purges, narrowing opportunities to vote beyond just Election Day itself, which in itself creates long queues and makes voting more difficult.

We remember the footage from Georgia in the wake of their recent laws being passed, which caused long lines, and you had rules that said you couldn’t bring someone to drink water while they stood in line for hours to order waiting to vote. All these kinds of rules have their own kind of dissuasive effect that would drive people away from voting.

But this kind of expressive harm to dissuade people from voting could well become the norm. It’s worth taking a moment to consider the effect of voter fraud talk, in the Reconstruction period and in the Jim Crow period and even the Voting Rights Act period. And now a big part of the justification for these strict rules is to prevent fraud, to preserve the integrity of elections.

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