Since the nomination and confirmation of Thurgood Marshall to the Supreme Court, the highest court in the land has often been the main institutional actor in checking white power. From landmark cases such from Brown v. Board of Education (1954) to University of California v. Bakke (1978), the Supreme Court has played a major role in deciding the legality of laws that infringe on minorities’ voting rights. Recently, the court has been confronted with the constitutionality of laws passed in Congress that have protected certain fundamental rights for minority groups. The Voting Rights Act of 1965 alone has reached the docket of the court in two separate forms in the last seven years.
Voting rights have been a more pertinent issue in American politics since the 2016 election of Donald Trump as president of the United States. During the election, the idea that Russia could tamper with the counting of votes worried many Americans. This notion was perpetuated by Donald Trump, who sent out several tweets in late 2016, alleging that ‘large-scale voter fraud’ was being committed before and during election day. Trump also declared that he was the true winner of the popular vote in late November, 2016, and he alleged that ‘millions of people’ voted illegally for the Democratic candidate, Hillary Clinton. Trump lost the popular vote in the 2016 presidential election, but won the key states such as North Carolina and Pennsylvania, which allowed him to win the electoral college, the deciding institution in American presidential elections. His allegations of voter fraud and illegal voting were both debunked by multiple organizations, including the Pulitzer prize winning organization Politifact.
While there was not widespread illegal voting or fraud committed in the 2016 election, the election was still considered unfair by many due to the purge of voter registrations that occurred right before the election. Almost 7,000 voters were purged in North Carolina one month prior to the election, and over 120,000 voters were purged in Brooklyn, NY in 2015. Voter registration lists are purged usually because of inaccurate voter information that would disqualify the authenticity of the vote. However, it is required for the government to notify such voters of their status, so they can register again if they choose to do so. In recent cases, voters have been purged suddenly and without lawful notification, such as in the case of North Carolina, and at times the purged voters have been removed without actual cause, as in, there is nothing actually wrong with their registration. In other cases, new measures for voter registration have impacted the accessibility of voting such as the Texas voter ID law, which requires voters to bring government-issued ID to vote. This legislation has been declared discriminatory by institutions such as the ACLU, but the law was upheld the 5th U.S. Circuit Court of Appeals in New Orleans, and was in effect during the 2018 midterm elections.
States purged 16 million voters from 2014 to 2016, according to a report by the Brennan Center for Justice. This has been, in large part, enabled by the Supreme Court decision in Shelby County v. Holder, decided in 2013. Shelby County v. Holder nullified a requirement of the Voting Rights Act of 1965 (VRA), that required ‘historically racist’ states to seek federal approval prior to amending their election laws. Shelby has had drastic effects upon the voting rights of millions of Americans. Jurisdictions that were previously required to adhere to this standard of the VRA have reportedly closed over 1,500 polling places and have purged voters at significantly higher rates than other jurisdictions. Voter purging requires the voter to re-register for their indication to vote, and the closing of polling locations harms the accessibility of voting for voters.
After the 2016 election, over 1 million voters were purged between 2016 and 2018. Shelby County v. Holder, has had detrimental effects on the enfranchisement of millions of voters. Now, the Voting Rights Act is in peril once more. Section 2 of the VRA prohibits any law that has the purpose or effect of impacting racial minorities’ right to vote, and it has been the main tool in many court cases to protect minorities’ right to a fair vote. It is currently being challenged in the case of Thomas v. Bryant. Thomas v. Bryant alleges that black Mississippi voters were disenfranchised of their voting power through the gerrymandering of the particular district referenced, Senate District 22. The provision of Section 2 that protects racial minorities’ right to a fair vote, forbids any law that has the result of disproportionately affecting minority suffrage.
The same district court involved with the aforementioned Texas voter ID law, the 5th U.S. Circuit Court of Appeals in New Orleans, decided on Thomas v. Bryant, originally in favor of the black constituents making the case. U.S. District Judge Carlton Reeves wrote the majority ruling, a panel of 2-1, that agreed with the constituents, in that the district diminished the voting enfranchisement of black constituents. The 7th U.S. Circuit Court of Appeals has already interpreted Section 2 as requiring discriminatory intent, rejecting the notion that the result of a piece of legislation causing discriminate effects, constitutes legal grounds for rectification. The decision of the 5th Circuit was vacated by the full court and will be reargued. Should the case reach the docket of the Supreme Court for review, the survival of Section 2 is in question, and the voting enfranchisement of minority voters is in possible jeopardy.