The Voting Rights Act of 1965 is arguably one of the most important pieces of legislation passed by Congress and signed into law during the twentieth century. The act is an essential part of ensuring all Americans have the equal opportunity to vote in free and fair elections, one of the pillars of democracy. Before this act was passed, many minorities, especially Black Americans, were openly disenfranchised as they were deprived of their right to vote. While this act did not fix the issue entirely, it represented a monumental step in the right direction towards ensuring a level playing field.
The Voting Rights Act has been met with resistance since it was written into law, however, in the past decade it has been attacked on a new level. In the decade following its adoption, the VRA was challenged several times in the courts. In response, the courts reaffirmed and upheld the constitutionality of the VRA, and further strengthened the act with amendments in 1970, 1975 & 1982. Contrastingly, in the past decade, the VRA has been met with open attempts at dismantling the mission of the act, and the response from the Supreme Court, which now holds a conservative majority, has been quite the opposite than previous times.
In 2013, the Supreme Court heard Shelby County v. Holder, a case in which Shelby County, Alabama argued that Section 5 and Section 4(b) were unconstitutional and unnecessary. Section 5 created a preclearance requirement, ensuring that eligible districts gain permission from the appropriate authorities before enacting any changes to their election practices or procedures. Section 4(b) held the coverage formula for this preclearance requirement, which determined which districts were to be subject to such requirements.
In a 5-4 decision split on ideological lines, the Supreme Court held that Section 4(b) of the Voting Rights Act was unconstitutional. While the Court did not rule on Section 5, their decision to strike down Section 4(b) basically rendered Section 5 useless. The impact of this decision was widespread, as it opened the floodgates for many states to change their voting practices and procedures without having to meet certain requirements. While the conservative majority on the Court believed that voting rights had become strong enough that the coverage formula was no longer necessary, the facts show differently.
For example, within twenty four hours of the Shelby decision, Texas enacted stricter voter ID laws that would not have passed so easily under Section 5 requirements. Shortly after Section 4(b) was struck down, North Carolina instituted a slew of restrictions and changes in voting practices as well, increasing the strictness of voter ID laws, curtailing early voting, and restricting pre-registration, among other things.
Since the 2013 decision, voting rights activists have been fighting for the strengthening of the VRA. However, with the loss of Section 4(b) and the consequent ineffectiveness of Section 5, the VRA has been weakened. States like Arizona have pushed stricter voting provisions that are harder to fight without Sections 5 and 4(b). In 2020, the Supreme Court heard the Arizona case, Brnovich v. Democratic National Committee, and upheld two provisions of the Arizona law that restricted ballot casting methods. Lower courts found these provisions unconstitutional under Section 2 of the VRA, which prohibits voting procedures that exclude members of a protected class, such as racial minorities. However, the Supreme Court ruled 6-3, on ideological lines yet again, that the provisions did not violate Section 2 of the Voting Rights Act. Not only did this case prove that Section 2 of the VRA is not strong enough to withstand these attacks alone, but it also limits the future ability of minorities to challenge discriminatory voting practices under the VRA.
The onslaught of voting rights violations continues, and the strongest protection the American people had is diminishing right before our eyes. What was once a transformative piece of legislation has been picked away, little by little, until it has become merely a skeleton of what it once was, and it was done completely legally.
But that is how democratic backsliding works. It is through incremental change, over time leading to the dismantling of institutions that are set up to guarantee citizens’ rights. When it is done slowly, it is harder to gather a coalition willing to fight this gradual change. The majority of people do not see Section 4(b) of the Voting Rights Act as a direct attack on their fundamental rights, therefore it is easy for people to ignore what is happening right in front of their faces. The seemingly “equal” right to vote remains the dominant narrative, even as voting practices and procedures become more restrictive. So, as more states utilize the weakening of the VRA as an opportunity to disenfranchise voters without them knowing, democracy in the United States continues to decline, until people do start to notice. However, it may be too late.