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A key section of the historic Voting Rights Act of 1965 is on the path to be gutted. On Monday, a conservative federal appeals court issued a ruling that, if upheld by the U.S. Supreme Court, would restrict the ability of the same organizations that risked life and limb to pass the law from suing.
All three judges of the U.S. Court of Appeals for the 8th Circuit who issued the ruling were appointed by conservative presidents: Judge David Stras was appointed by Donald J. Trump and Judges Raymond Gruender and Lavebski Smith by George W. Bush.
The ruling essentially restricts the ability of private citizens and civil rights groups, such as the NAACP Legal Defense and Educational Fund (LDF), American Civil Liberties Union (ACLU), Mexican American Legal Defense and Educational Fund (MALDEF), to file lawsuits under Section 2 of the Voting Rights Act.
For historical context, white supremacists have always been restrictive of the Black Vote. In 1930, an Oklahoma legislator said, “The negro is no problem in Oklahoma. There are not enough of them to secure political control, though some ‘feel’ they form a balance of voting power.”
If the opinion is upheld, the votes of millions of Black Americans could be in jeopardy.
What’s in Section 2 of The Voting Rights Act of 1965?
Section 2 of the Voting Rights Act of 1965 is a key provision that prohibits voting practices and procedures that discriminate against American citizens on the basis of their race, color, or membership in a language minority group.
Specifically, it states:
“No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 4(f)(2) [pertaining to language minority groups].”
In essence, Section 2 of the Voting Rights Act aims to protect the voting rights of all citizens, particularly those who have historically faced racial discrimination in voting (i.e., African American).
It prohibits any voting-related measures or practices that have a discriminatory impact, even if the discrimination is not explicitly intentional. This provision is crucial as it prohibits election or voting practices that discriminate against Americans based on their race.
Moreover, Section 2 has been used in legal challenges to challenge various forms of voting discrimination, such as racially discriminatory redistricting (racial gerrymandering) and the implementation of voting laws or practices that disproportionately affect minority voters.
Alabama redistricting case revived Voting Rights Act
Notably, Black and Democratic Party voters in Alabama recently scored a major win after the U.S. Supreme Court ordered the state to create a second Black-majority district in October. Despite making up a quarter of the state’s population, Black voters have enjoyed just one out of seven districts in which they had the ability to pick a candidate of their choice.
Amid a year of legal battles, Republicans tried to ignore court orders to add a second Black-majority district by creating their own map. Ultimately, in a surprising move, the heavily conservative U.S. Supreme Court sided with Black voters. Federal judges have drawn new maps for the state.
The rare win for the Voting Rights Act in Alabama has sent a shockwave of renewed energy in similar states where the number of Black-majority districts don’t match the percentage of Black voters. Louisiana, North Carolina, Georgia and Texas are all being watched closely as states that could be forced to add a Black-majority district.
Meanwhile, the Eighth Circuit’s ruling in Arkansas could deal a death blow to voters seeking fair districts. If the Supreme Court upholds the ruling, it could have a domino effect on states across the country.
Implications of Section 2 if Restricted
Significantly restricting or weakening Section 2 of the Voting Rights Act would carry several significant implications for voting rights and access to the electoral process in the United States:
- Reduced Protections Against Discrimination: Section 2 is a key provision that prohibits voting practices or procedures that discriminate against American citizens on the basis of their race, color, or membership in a language minority group. Weakening this section could result in reduced protections against racial discrimination in voting, making it harder to challenge and rectify discriminatory practices.
- Barriers to Legal Challenges: Restricting Section 2 could limit the ability of private citizens, civil rights organizations, and other groups to bring legal challenges against discriminatory voting laws and practices. This could make it more difficult to address and remedy instances of voter suppression, racially discriminatory redistricting, and other barriers to voting.
- Impact on Minority Communities: Discriminatory voting practices have historically disproportionately affected minority communities. Weakening Section 2 could disproportionately impact these communities by reducing their ability to challenge and rectify discriminatory voting laws and practices that target them.
- Increased Risk of Voter Suppression: Without the robust protections provided by Section 2, there could be a higher risk of voter suppression efforts going unchecked. Measures such as voter ID laws, changes to polling place locations, and reductions in early voting opportunities could disproportionately affect minority voters.
- Chilling Effect on Voting Rights Advocacy: A restriction of Section 2 could have a chilling effect on voting rights advocacy. A weakened legal framework may reduce the inclination of advocates and organizations to challenge discriminatory practices.
- Potential for Unequal Representation: Weakening Section 2 could affect the fairness of electoral districting, potentially leading to unequal representation in legislatures and other elected bodies.
The 8th Circuit Court’s Decision
The court’s decision argued that only the federal government has the authority to bring legal challenges under Section 2, effectively eliminating the right of private citizens to file such lawsuits. There is a high likelihood that litigants will appeal this ruling to the Supreme Court, which presently maintains a conservative majority that has previously issued decisions weakening the Voting Rights Act.
The court of appeals based its decision on the absence of explicit language in the Voting Rights Act providing for a “private right of action” or the ability of private citizens to sue under the law.
If this ruling stands, it would significantly diminish a crucial aspect of the Voting Rights Act. Private citizens and civil rights groups have historically brought forth many challenges to discriminatory voting laws and racial gerrymandering.
From jellybeans to gerrymandering, Black folks have long had their voting rights threatened
In 1900, E.A. Wright published a pamphlet titled “What a Colored Man Should Do To Vote,” which explained the discriminatory restrictions implemented when attempting to vote in the listed states. Most of the states in the pamphlet were in the South and had been part of the Confederacy during the Civil War.
Until the Supreme Court struck it down in 1915, many states used the “grandfather clause ” to keep descendants of slaves out of elections. The clause said you could not vote unless your grandfather had voted — an impossibility for most people whose ancestors were slaves.
Through gerrymandering, redlining, urban renewal, gentrification, and even jelly beans, U.S. citizens have seen there are no lengths their own government officials will go to in order to silence their voices.
In his speech Ballot or the Bullet, Malcolm X once said, “It’s liberty, or it’s death. It’s freedom for everybody or freedom for nobody.”
Despite opposition efforts, The Voting Rights Act had an immediate impact. The National Archives reported that, by the end of 1965, federal examiners had registered one-third of a quarter of a million new Black voters.
By the end of 1966, only four out of 13 southern states had fewer than 50 percent of African Americans registered to vote. Congress readopted and strengthened the Voting Rights Act of 1965 in 1970, 1975, and 1982.
In those years, African Americans in the South faced hurdles to vote, including poll taxes, literacy tests, and other bureaucratic restrictions to deny them their democratic right.
Whether counted as three-fifths or one-third, African Americans have always had to fight for their vote – and their voice.
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