How the Voting Rights Act ended up back at the Supreme Court

Although we are months out from any decision, many voting rights advocates have their eyes on the Supreme Court, which may decide several cases this term that could affect the validity of the Voting Rights Act.

The law was passed and signed in 1965, but it has been a long time coming. Its roots date back to the end of Reconstruction. Federal troops withdrew from the South after the Compromise of 1877, ushering in what is known as the nadir of race relations in America. Jim Crow laws were implemented, the Ku Klux Klan rose to power, and many attempts by Black people to vote and exercise full citizenship met with violence. The violence continued into the 1960s.

After the VRA’s passage, black voter registration in the South rose dramatically, and in the nearly six decades since its enactment, the law has been strengthened and weakened. According to Atiba R. Ellis, Case Western Reserve School Law professor, “In some ways, the way the Voting Rights Act has changed, in part, the conversation between Congress and the Supreme Court.”

In this week’s episode of Grass – Vox’s podcast for political and policy discussions – we jump in the Weeds Time Machine with Ellis and go back to the situation that gave us the VRA, and look forward to whether the policy can be implemented in the future.

Below is an excerpt of our conversation, edited for length and clarity. You can listen Grass on Apple Podcasts, Spotify, Stitcher or wherever you get your podcasts.

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Atiba R. Ellis

Merrill [v. Milligan] now before the Court, and about the redistricting plan in Alabama. Alabama went through its redistricting process, and drew one district for the US House of Representatives that is majority Black. Plaintiffs here basically argue that Alabama packed Black voters to the district that when sending has been drawn more districts with a majority of African Americans. And so [the plaintiffs say] that this violates Section 2 of the Voting Rights Act.

As such, this has the potential to change the standard for racial vote dilution cases under the Voting Rights Act and potentially make it more difficult for plaintiffs to bring their claims.

Jonquilyn Hill

This isn’t the only Supreme Court case on voting that could affect the Voting Rights Act coming this summer, right?

Atiba R. Ellis

Another very important case, although not directly related to the Voting Rights Act, [that] But it will cause the VRA to be a so-called case Moore v. Harper. And this case comes out of North Carolina, where the General Assembly of North Carolina passed another set of voting rules after a history of voting cases where both federal courts and state courts have struck down North Carolina’s efforts. But this time, the North Carolina Supreme Court struck down the General Assembly’s rule, and the General Assembly went to the U.S. Supreme Court, arguing that the theory of independent state legislatures should be adopted by the U.S. Supreme Court and thus remove the state courts from being able to rule on what state legislatures do about the rules. federal elections.

So they say, that it is up to the states, and the text of the election clause in Article 1 of the Constitution says that the legislature will make the rules. They say take that literally, as in the legislature and no one else can make the rules.

Jonquilyn Hill

But it is the court’s job to interpret the rules it makes. That is why we have three branches. This is why we have an executive, a legislature, and a judiciary. And aren’t state courts technically part of the state?

Atiba R. Ellis

In view – and, full disclosure, I co-authored the brief Moore v. Harper case – this argument of ours is useless. The branches of government are there to balance anyone’s work. And so the legislature has all the power and, depending on which version of the theory of independent state legislatures you look at, it might be just the state legislature and maybe the federal courts, or just the Supreme Court, but not the state courts themselves. Does it make sense that the state court with the state constitution that says the state court can review the legislature, that all will be ignored because of this? In general, [this is an] ahistorical and nonsensical interpretation of the Constitution.

Jonquilyn Hill

What would the future of voting look like in America without the Voting Rights Act — or without the teeth, which may happen after the next Supreme Court session?

Atiba R. Ellis

I think voting is either very challenging or very progressive, depending on what country you are in. and the desire to make the rules stricter, make the regulations more rigid and burdensome. Some states have even recently passed legislation requiring a special vote.

The challenge is that with stricter rules fueled by talk of voter fraud, what makes it so difficult for people who don’t have the means to jump through these hoops to participate? And to me, that echoes the Jim Crow problem we’ve been talking about: the nadir of voting rights. It was an era when a third of the country’s population could not vote effectively because of too many regulations that exploited the weakness of that population. And all of that discrimination is largely along the lines of race. Does something like that repeat itself? Maybe not to the extent of Jim Crow apartheid, but I would think that any recurrence could be a problem, and if history teaches us anything, many will fall along the lines of race.

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

Jonquilyn Hill

I’m curious what parallels there are between the era that gave us the Voting Rights Act and our current political landscape. Because in many ways, it is different. But in many ways, it feels very similar.

Atiba R. Ellis

On one level, there was a lot of what I see as hyperregulation of voting in the period before the Voting Rights Act went into effect. You have this list of Jim Crow laws that dissuaded people from voting. And today, arguably, we have more rules driven by concerns about voter fraud that don’t exist: stricter voter ID laws, more aggressive voter purges, narrowing of opportunities to vote outside of Election Day alone, which in and of itself creating long lines and making voting more difficult.

We remember footage from Georgia after the new law passed, which created long lines, and you had a rule that said you can’t bring people a drink of water while they’re waiting in line for hours. waiting for the vote. All these types of rules have their own dissuasive effect that will drive people away from voting.

But this expressive harm to prevent people from voting may become the norm. It’s worth taking a moment to think about the effects of Voter Fraud Talk, in the period around Reconstruction and in the Jim Crow period and even the Voting Rights Act period. And now many justifications for these strict rules prevent fraud, maintain the integrity of the election.