The Voting Rights Act from 1965 counts amongst the most fruitful statutes in U.S. history. Furthermore, it stands as one of the most ethically sound actions the United States has ever taken.
This statute represented America’s initial earnest endeavor post-Reconstruction to construct a multiethnic democracy, succeeding beyond the wildest expectations of even the most progressive Republicans following the Civil War. On the day that President Lyndon B. Johnson formally enacted the Voting Rights Act, the percentage of Black voters registered in Mississippi, a Jim Crow stronghold, was merely 6.7%. In the span of two years after the VRA came into effect, that figure soared to 60%.
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Thus, the Voting Rights Act, which the Republican justices are anticipated to further erode during the Supreme Court’s upcoming session, marked a significant achievement. Nonetheless, its foundation relies on certain presumptions regarding the distribution of authority within the United States that may no longer be valid. The unfortunate truth is that we might no longer be able to place confidence in either the executive or the judicial branches regarding the authority granted to them by the Voting Rights Act.
The core issue addressed by the VRA was illiberal states, under the control of white supremacists resolved to eliminate Black Americans from political influence. In the mid-1960s, the federal government stood as the champion of racial equality, headed by its greatest advocate to occupy the Oval Office since President Ulysses S. Grant. Besides the Voting Rights Act, Johnson approved statutes prohibiting racial discrimination in employment, educational institutions, hotels, eateries, theaters, and residences.
Consequently, it was logical for his landmark voting rights legislation to consolidate authority within the federal government. A crucial stipulation, effectively rescinded by the Republican justices in 2013, mandated that states with a background of racial discrimination in electoral processes secure “preclearance” from federal authorities in Washington, D.C., for any fresh election regulations. An additional provision, currently before the Supreme Court in Louisiana v. Callais, empowers federal judges to intervene when a state enacts a law that “results in a denial or abridgement of the right of any US citizen to vote on account of race or color.”
In essence, the VRA’s underlying principle was that federal officials across both the executive and judicial branches could be relied upon to pursue the objective of racial equality in elections — irrespective of which political faction might gain from the realization of this objective.
It is challenging to contend that this underlying principle remains valid today. The Trump administration cheerfully employs power to penalize individuals perceived as Trump’s adversaries, and to selectively favor Republicans. The Republicans who hold sway over the federal judiciary are also increasingly demonstrating a similar disposition. How else can one elucidate Trump’s unparalleled string of victories in the Supreme Court?
Up to this point, the Court’s Republicans have exclusively aimed to dismantle the Voting Rights Act. Chief Justice John Roberts, specifically, waged a prolonged campaign against the statute for almost five decades. In his capacity as a young attorney within the Reagan administration, he played a key role in a failed attempt to persuade Ronald Reagan to veto a 1982 law reinforcing the VRA’s safeguards against racial discrimination.
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Should Roberts and his fellow Republican justices overturn the VRA, their political party is poised to benefit. The Callais case takes aim at the Voting Rights Act’s limitations on racial gerrymandering. Furthermore, while racial gerrymandering constitutes a distinct legal concept from partisan gerrymandering (which arises when the dominant political party drafts maps with the aim of diminishing representation for the minority party), these concepts are interwoven. This holds particularly true in states with substantial populations of Black voters. Because Black Americans display an overwhelming inclination towards Democratic candidates in contrast to Republicans, Republicans are often able to employ race as a substitute to determine which voters they intend to disenfranchise.
Consequently, in the probable scenario that the VRA’s restrictions on racial gerrymandering are removed, it will become simpler for red states — notably in the South — to abolish districts that elect Democrats of color and replace them with districts that elect white Republicans. Specifically in the South, numerous red state congressional delegations could become entirely white, as the Republican state legislature devises fresh maps that withhold representation from (primarily Black) Democrats.
Nevertheless, the justices possess the capacity to undertake something considerably worse. The Court’s Republican majority on a frequent basis implements one set of regulations for abortion opponents, and a separate, more favorable set of regulations for the religious right. They manipulate their schedule to grant expeditious relief to Trump, while intentionally delaying decisions that might prove advantageous to Democrats.
The wording of the Voting Rights Act is rather expansive, and unethical judges could readily manipulate it to achieve partisan objectives. Moving forward, the statute might prove to be more detrimental than inadequate in its capacity to protect Americans from disenfranchisement, whether on the basis of race or otherwise. Partisan judges might exploit this very statute, designed to eradicate discrimination at the ballot box, as the rationale for enacting discrimination at the ballot box.
In other words, Democrats may need to reconsider whether it is sensible to concentrate authority over such a crucial matter as elections within a federal government increasingly governed by illiberal Republicans who are eager to solidify their own dominion.
The manner in which the Voting Rights Act currently addresses racial gerrymandering
In the Callais case — the Voting Rights Act case set to be heard by the Supreme Court on October 15 — the current group of justices will determine whether to reverse a 1986 decision known as Thornburg v. Gingles. That decision established the parameters for instances when federal judges should invalidate legislative maps due to their diluting of minority representation — and its origins lay in a political clash in which Roberts was defeated.
In City of Mobile v. Bolden (1980), the Court decreed that plaintiffs asserting that a state law contravenes the VRA must demonstrate that the state legislature enacted said law with “racially discriminatory motivation.” That is a demanding threshold to overcome, given that neither voting rights attorneys nor judges possess the ability to read minds. Furthermore, by the 1980s, states infrequently enacted statutes that overtly discriminated on the grounds of race in the flagrant manner that numerous Southern states did throughout the Jim Crow era.
In response to Mobile, Congress modified the VRA to incorporate its present language, which targets any state law that “results” in an individual being denied the entitlement to vote as a result of their race. Consequently, even if a Voting Rights Act plaintiff is unable to substantiate that a particular state law was driven by racism, the law may still violate the VRA if it exerts a detrimental effect on minority representation.
The amended VRA’s wording is sufficiently expansive that illiberal judges could effortlessly interpret it to accomplish considerably more sinister objectives.
Despite Roberts being among the handful of White House and Justice Department officials who endeavored to persuade Reagan to veto this amendment, Reagan formalized it into law in 1982.
To the credit of the Reagan-era justices, the Supreme Court responded to this rejection of the Mobile decision with sincere endeavors to implement the amended VRA. In Gingles, the Court took into account the effects of the 1982 amendments on assertions that a state’s congressional or state legislative maps unlawfully obstructed voters of color from electing their preferred candidates. The Court’s resolution to that inquiry proved to be fairly ingenious.
Penned by Justice William Brennan, a liberal luminary whom Justice Antonin Scalia once characterized as “the most influential Justice of the twentieth century,” the Gingles framework is rather intricate. Nonetheless, it hinges largely on two inquiries: 1) whether a state is residentially segregated on the basis of race; and 2) whether the state’s voters are racially polarized, signifying that voters of a particular race tend to vote for one political party, whereas voters of another race display a tendency to vote for the opposing political party.
The brilliance of Brennan’s approach lies in its acknowledgment that, in instances where residential segregation and racial polarization coexist, they engender two discrete political factions that consistently cast their votes for opposing candidates. Furthermore, within a state characterized by distinct political factions, the majority faction is capable of drafting maps that provide the minority faction with minimal, if any, representation within the legislature.
Thus, to ensure that both factions receive representation, Gingles stipulated that judges must, at times, revise a state’s legislative maps in situations where the state’s initial maps dilute the representation of a minority faction. Gingles also incorporates a self-terminating provision. As a state becomes progressively integrated, and as its voters exhibit less racial polarization, the VRA assumes a diminished role.
However, should the Republican justices overturn Gingles, as anticipated, Gingles will self-terminate prior to many states attaining full integration. These states could then swiftly revert to the circumstances Brennan sought to avert, wherein white lawmakers intentionally draft maps that deny representation to non-white members of the opposing political party.
The language contained within the 1982 amendments — which, once more, prohibits a state law that “results” in the denial of an individual’s right to vote on account of their race — is ambiguous. The Court’s interpretation of that language within Gingles undeniably constitutes a permissible interpretation of the amended VRA. Nevertheless, it is also safe to assert that the intricate framework Brennan outlined within Gingles does not inevitably arise from the broadly worded text of the Voting Rights Act. Brennan, the Supreme Court’s quintessential liberal, grasped that the principal issues that 20th-century civil rights laws were intended to address were racial segregation and racial exclusion from the political sphere. Consequently, he interpreted the VRA in light of this historical objective.
However, the amended VRA’s wording is sufficiently expansive that illiberal judges could effortlessly interpret it to accomplish considerably more sinister objectives.
Numerous state election laws will, at a minimum to some degree, exert a disproportionate effect on one race or another. A judge aligned with MAGA could simply invoke the Voting Rights Act to invalidate laws that exert even the slightest detrimental impact on white Republican voters, potentially asserting that they represent the racial and political group in need of protection from discriminatory maps. Simultaneously, the same judge could uphold state laws that exert substantially greater detrimental impacts on racial groups that favor Democrats. Such a judge might even direct blue states to draft maps that maximize congressional representation for white Republicans.
Indeed, this scenario does not even appear particularly improbable, given that the current Supreme Court frequently accords preferential treatment to Republicans and to causes championed by the Republican Party.
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As I meticulously delineated here, the Supreme Court’s Republican majority applied one set of regulations to Joe Biden and a superior set of regulations to Donald Trump, while implementing one set of regulations for abortion providers and a distinct, less favorable set of regulations for abortion opponents. The Republican justices bestow favors upon the religious right akin to indulgent parents showering treats upon trick-or-treaters. Furthermore, this is, of course, the same Court that decreed that Donald Trump is permitted to employ the powers of the presidency in order to perpetrate crimes.
Consequently, they could just as readily selectively invoke the Voting Rights Act to invalidate state laws that purportedly encumber white Republicans — while concurrently endorsing voting restrictions that target racial groups displaying a proclivity towards Democrats.
To be equitable, the current cadre of Republican justices have largely resisted this enticement. While their decisions circumscribing the Voting Rights Act frequently take extraordinary liberties with the Constitution and with the VRA’s text, they have largely attempted to terminate the Voting Rights Act rather than to weaponize it for the benefit of Republicans. The Republican justices’ ruling in Shelby County v. Holder (2013), for instance, effectively neutralized the VRA’s stipulation necessitating that certain states secure preclearance from federal officials for new election regulations. It did not endorse red state voter limitations while simultaneously blocking progressive voting legislation within the blue state of Virginia.
Nevertheless, that scenario could undergo a transformation swiftly if Trump secures the opportunity to fill additional vacancies on the Supreme Court. While Justices Brett Kavanaugh and Amy Coney Barrett may not aspire to employ the Voting Rights Act to secure their political faction’s dominance, it is readily conceivable that a Supreme Court staffed by MAGA judges, such as Andrew Oldham, James Ho, Aileen Cannon, and Emil Bove, might do so.
For an insight into the manner in which numerous younger Republican judges approach election cases, consider Oldham’s opinion in Republican National Committee v. Wetzel (2024), which Ho co-authored. Oldham asserted that an 1872 statute establishing the date for federal elections proscribes states from counting absentee ballots dispatched prior to Election Day but arriving after that date — and that, somehow, this prohibition had gone unnoticed for the preceding 152 years.
Trump and his Republican Party have singled out mailed ballots for criticism on the basis that, in recent elections, Democrats demonstrated a greater likelihood of casting their ballots by mail than Republicans.
It is challenging to even discern a legal argument within Oldham’s opinion. Nevertheless, he allocates a total of three sentences to claiming that Congress’s decision to establish an election date implicitly compels state election officials to ascertain the total number of ballots requiring tabulation by the conclusion of that day. He furnishes no legal precedent to substantiate this assertion.
Wetzel exemplifies the degree to which the forthcoming generation of Republican judges are prepared to extend the boundaries of the law in order to secure their political party’s dominance. Should they possess the capacity to interpret a statute establishing an election date as a sanction to discard Democratic ballots, one can only imagine their potential actions with the ambiguous language of the VRA.
The Voting Rights Act is exclusively efficacious provided that we can repose confidence in the individuals administering it. It potentially represents a profoundly perilous instrument within the grasp of a fiercely partisan judiciary.
Federalism is (occasionally) beneficial
The American left has historically regarded federalism, the notion that a portion of political authority should be vested in the states rather than the federal government, with skepticism, and justifiably so. It was a robust Union that triumphed over the Confederate states and abolished slavery. Further, it was a formidable federal government that enacted statutes such as the Voting Rights Act, which served to undermine the Jim Crow system.
If American democracy manages to endure the second Trump administration, and should Democrats regain authority in a future election, they will be compelled to grapple with the inquiry of whether an excessive amount of authority is concentrated within the federal government.
In more recent times, Republicans have frequently employed questionable appeals to federalism as a means of contesting liberal achievements within Congress. The initial prominent lawsuit seeking to repeal Obamacare, for instance, was at least nominally predicated upon an appeal to federalism. Republicans asserted that exclusively the states, and not the federal government, possess the authority to mandate that individuals procure health insurance — notwithstanding the fact that the federal government has long levied taxes upon Americans in order to finance federal health insurance programs such as Medicare or Medicaid.
Nonetheless, federalism also constitutes one of the most indispensable safeguards against Trump’s endeavors to consolidate his authoritarian control. Trump, for instance, is exerting pressure on Republican states to redraw their congressional maps in order to exclude Democrats from influence within the US House — a maneuver that Texas has already executed. However, these red state gerrymanders are inherently constrained, given that not all states are red. Blue states such as California may enact their own gerrymanders in order to counterbalance the effects of the fresh Texas maps.
In an alternate rendition of the United States in which congressional maps were drafted by Congress, conversely, the GOP would possess the capacity to redraw maps across all 50 states with the intention of maximizing their own authority. At a minimum, the authority vested in states to draft their own maps prevents Congress or the president from manipulating maps within Democratic-controlled states to the advantage of Republicans.
Similarly, another critical safeguard against federal authority resides in the fact that the US government does not, in reality, employ an extensive number of law enforcement officers. Furthermore, by virtue of the Supreme Court’s “anti-commandeering” doctrine, the federal government is barred from assuming control over state or local police — or, at a minimum, it cannot do so absent the state’s consent. Consequently, this facet of US federalism forestalls Trump from transforming every beat cop throughout America into his own personal enforcement squad.
At present, liberals and Democrats — at least on the federal stage — can merely watch in impotent horror as Trump endeavors to emulate an American version of Viktor Orbán. Democrats wield negligible influence within Congress. Furthermore, the federal judiciary, ostensibly serving as the Constitution’s final bulwark against an aspiring dictator, is under the guidance of a Supreme Court dominated by Republicans who have behaved like sycophants toward Trump.
However, if American democracy manages to endure the second Trump administration, and should Democrats regain authority in a future election, they will be compelled to grapple with the inquiry of whether an excessive amount of authority is concentrated within the federal government. Statutes such as the Voting Rights Act were drafted on the premise that federal officials, and notably federal judges, could be relied upon to administer the law in a fair and impartial manner. Nonetheless, that premise no longer holds true. Moreover, the courts will invariably grow more partisan and more sympathetic to MAGA authoritarianism as Trump populates additional vacancies on the federal bench.
Perhaps, by the year 2028, American voters will be so wearied of MAGA Republicanism that they will confer upon Democrats the authority to accomplish something even President Franklin D. Roosevelt was unable to achieve at the pinnacle of his power and popularity: packing the Court with a greater number of Democratic justices with the intention of diluting the votes of its incumbent Republican majority. However, realistically, that outcome is unlikely to materialize. The federal judiciary is poised to remain under the control of highly partisan Republicans for decades to come.
That somber reality, at a minimum, compels liberals and Democrats to confront the inquiry of whether we can still possess good things — particularly when those good things are contingent upon the premise that federal judges can be trusted.
Source: vox.com
