Voting Rights Act needs reinforcement

In a recent edition of the Brookings Beacon, I included an opinion article that traced the history of voting rights in the US. In the article, I noted that the ratification of the 15th Amendment in 1870 which prohibits states from denying the right to vote based upon race and empowers Congress to enforce minority voting rights provided only short-term relief to Black voters.

Once reconstruction ended and federal occupation troops withdrew from the former confederate states, the old White power structure reasserted itself and began to deny Blacks the right to register to vote and to vote and to seek public office through a variety of schemes including physical intimidation and lynchings as well as poll taxes, literacy tests, whites only club primaries and dilution of racial minority votes through election district gerrymandering. It was not until the mid-1960s that racial minority voting rights in the South began to be truly protected. The 1964 ratification of the 24th Amendment prohibiting state poll taxes in federal elections provided some needed relief for Black voters.

A series of US Supreme Court rulings endorsing the principle of “one person one vote” reduced the representation of sparsely populated white rural areas and increased the representation of minority populated urban areas.

But it was approval of the 1965 Voting Rights Act that provided enforcement teeth for the 15th Amendment. States with a history of racial discrimination in voting (including South Dakota) were required to submit election law and redistricting plans to a federal court or the US Department of Justice for preclearance before going into effect. The US Department of Justice was given new authority to investigate and prosecute individuals intentionally interfering with racial minority voting rights. Minority voters were recognized as having standing to sue states for relief in federal courts in challenging state election laws or redistricting plans.

The Voting Rights Act has been reauthorized multiple times with overwhelming bipartisan majorities in Congress.

In 1982 Congress amended the Act to clarify that minority plaintiffs did not need to show state intentional voter discrimination to prevail in voter discrimination suits. Congress specified that minority voters need only to show that the political process “was not equally open to voter participation” in that “its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice”.

In 1986 the US Supreme Court provided judicial clarification and approval of the 1982 VRA Amendment by holding that if minority voters were sufficiently numerous and compact and supported one party far more than white voters did, VRA provisions applied and minority voters could seek judicial relief in the drawing of a majority minority election district. In 2006 the VRA as amended was extended for 25 years by an overwhelming bipartisan majority vote in the US House and Senate. It appeared that our nation was moving forward in the quest for political equality.

Optimism surrounding the pursuit of political equality was dimmed in 2012 when the US Supreme Court ruled in Shelby County v Holder that Section 4(a) of the Voting Rights Act which established a formula for application of the preclearance provisions of Section 4 (b) was based upon dated election data and could no longer be applied.

In effect, the Court invalidated the preclearance mandate by a federal court or US Department of Justice before states with a history of racial discrimination in voting could implement new election laws or redistricting proposals. Chief Justice Roberts mused that the time has passed when our nation needs to fear racially motivated discrimination in voting.

Yet, quickly after the ruling, states impacted by VRA began to impose new voting restrictions that had a disproportionate impact on low-income minority voters. Congress could remedy the legal issue by approving an updated formula of voting data as provided under the provisions of the John R Lewis Voting Rights Advancement Act, but partisan opposition has prevented that. The overwhelming bipartisan support VRA once enjoyed has given way to GOP opposition.

The US Supreme Court further diminished the VRA with the 2019 Rucho v Common Cause ruling in which the Court held that federal courts could not find a state election redistricting proposal unconstitutional simply because it was drawn for partisan gains, but racially discriminatory districting plans would continue to be prohibited under the 1982 amendment to the VRA.

The plaintiffs still would not have to show state intention to discriminate based on race to prevail in a legal challenge to a state election districting plan if the plaintiff could show the racially discriminatory effect of the plan. That logic was dismissed by the US Supreme Court when on April 29, 2026, the Court held in Louisiana v Callais that the discriminatory effect test that Congress had legislated and the Court had earlier sanctioned would no longer apply.

Plaintiffs would now have to show discriminatory purpose to prevail in challenging a state election districting plan.

Since modern law makers seldom publicly reveal that their purpose is to discriminate based on race and law makers cannot be required to swear under oath about their legislative intention, the Voting Rights Act has been effectively neutered.

The ruling is as close to legislating from the bench as we have witnessed in the history of our nation and it was supported by the six conservative justices of the Court. A final death blow to VRA may come later in this term of the Court when the Court will decide if individuals can continue to bring suit under the Voting Rights Act or if the Act limits standing to the US Department of Justice.

One does not have to think long to understand that the Trump Department of Justice is not likely to be proactive in suing in pursuit of political equality for members of all races.

One could dismiss all these concerns by reasoning that voters of minority races do not significantly favor one party over the other or that state officials will not intentionally discriminate based on race in approving election redistricting plans, but facts do not support that reasoning. Current election data reveal that Black voters lean heavily Democratic and White voters lean heavily Republican in Alabama, Arkansas, Georgia, Louisiana, Mississippi and South Carolina.

The drawing of election districting plans to provide a partisan advantage to the majority Republican Party in those states will dilute the voting strength of Black voters and the VRA will provide no protection for those minority voters. Law makers in these states will be able to choose their voters with no legal restraints.

It is not a poll tax or a literacy test, but it has a similar effect in halting progress toward political equality in our nation.

If there is a remedy for this legal turn of events, it will have to be found in the political process.

Citizens who believe in political equality and oppose racial discrimination in voting must become more engaged and support candidates for local, state and national office that believe as they do.

Partisanship in the drawing of election district boundaries which has the effect of discriminating against minority voters will yield to nonpartisan efforts to achieve fairness for all races in voting when we are represented by fairer minded Republican, Democratic and Independent law makers.