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“The denial of this sacred right [to vote] is a tragic betrayal of the highest mandates of our democratic tradition,” Rev. Martin Luther King Jr. said in 1957. Now, on January 18, 2021 — one day after we celebrated King’s birthday and one year after a mob of right-wing Trump supporters attacked the Capitol in an attempt to overturn the results of a free and fair election — the Senate is debating voting rights legislation aimed at stopping voter suppression. But the legislation appears doomed to failure.
The right to vote is “preservative of all rights,” the Supreme Court said in 1886 in the case of Yick Wo v. Hopkins. The Constitution mentions the right to vote in five separate places — the 14th, 15th, 19th, 24th and 26th Amendments, each of which empowers Congress to enact “appropriate legislation” to enforce the protected right. Yet right-wingers — enabled by congressional Republicans and reactionary members of the Supreme Court — are mounting a full-court press to prevent marginalized groups from voting.
During Reconstruction after the Civil War, the 15th Amendment was added to the Constitution. It prohibits the federal government and the states from denying or abridging the right to vote on account of race, color or previous condition of servitude.
As a result of the civil rights movement, Congress passed the landmark Voting Rights Act (VRA) in 1965 to enforce the 15th Amendment. It links racial discrimination with the right to vote.
The VRA forbids voting changes if their purpose or effect is to diminish the ability of citizens to vote on account of race, color or language minority status. “The right to vote was the crown jewel of the civil rights struggle,” said Rev. Jesse Jackson.
Supreme Court Uses States’ Rights Rationale to Usurp Congress’s Power
Although Congress reauthorized the VRA four times with strong bipartisan majorities and each reauthorization was signed by a Republican president, the Roberts Court has now usurped the power of Congress and eviscerated the VRA.
In the 2013 case of Shelby County v. Holder, a 5-4 right-wing majority of the court struck down the provision of the VRA which required that jurisdictions with a history of racial discrimination obtain preclearance from the Justice Department or a panel of three federal judges in the District of Columbia before making voting changes. Chief Justice John Roberts wrote on behalf of himself, Clarence Thomas, Samuel Alito, Antonin Scalia and Anthony Kennedy.
The majority took a states’ rights approach (citing “equal sovereignty”) which will allow states to enact racist voting laws. They looked only to the end of discriminatory voting tests and the lack of disparity between whites and non-whites in voter registration and turnout since the enactment of the VRA. The court then concluded that the formula set forth in Section 4 for requiring Section 5 preclearance need no longer be used.
At that time, Ruth Bader Ginsburg, joined by Sonia Sotomayor, Elena Kagan and Stephen Breyer, filed a scathing dissent. “Hubris is a fit word for today’s demolition of the VRA,” Ginsburg wrote.
“Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet,” Ginsburg noted. Moreover, the dissent explained, “the VRA is grounded in Congress’ recognition of the ‘variety and persistence’ of measures designed to impair minority voting rights.”
The dissent said discrimination is “more subtle” today, citing “second generation barriers” to voting that reduce the impact of minority votes. Ginsburg mentioned racial gerrymandering and at-large voting instead of district-by-district voting in cities with sizable Black populations. She also listed vote dilution (drawing redistricting maps in a way that minimizes the voting strength of the non-white population), curtailment of early voting, moving polling places away from predominantly Black neighborhoods and purging voter rolls of many Black voters.
After Shelby, state after state enacted — and continue to enact — voter suppression laws. They prevent easy access to polling places, provide for early closure of polls in Black and Brown communities, make it harder to receive mail ballots, reduce early voting, restrict voter registration and prevent the accurate counting of votes. States including Georgia and Texas have drawn extreme gerrymandered maps which entrench the power of Republican politicians.
Using baseless and alarmist claims about “voter fraud” (which is virtually nonexistent) as a justification, states are passing voter identification laws that make it harder for marginalized communities to vote. GOP-led states insert Republicans into the election process and empower state legislatures to overturn presidential election results even after certification by election officials.
In 2020, the Supreme Court made it more difficult to mount legal challenges to voter suppression measures. The court held 6-3, again along ideological lines, in Brnovich v. Democratic National Committee, that two Arizona voter suppression laws (ballot harvesting and out-of-precinct voting) did not violate Section 2 of the VRA, which forbids any voting procedure that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race.”
Shelby Invited Congress to Draft Another Preclearance Formula for “Current Conditions”
“Congress may draft another formula [for preclearance] based on current conditions,” the Shelby majority stated. Two bills are pending in Congress to address the “current conditions” of voter suppression.
The John Lewis Voting Rights Advancement Act would establish new criteria for determining which states and political subdivisions must obtain preclearance before changes to voting practices may take effect. States need preapproval based on the number of voting rights violations they have had in the past 25 years. After 10 years without violations, they no longer require preclearance.
The Freedom to Vote Act cracks down on voter suppression. It would facilitate early voting, allow same-day voting and online voter registration, protect voters from purges, ban partisan gerrymandering, mandate disclosure of major campaign donors, prevent state restrictions on mail-in voting, require the counting of votes that are postmarked on or before Election Day and arrive at polling places within a week, set uniform standards for voter ID, provide that no one has to wait longer than 30 minutes to vote, and require voter-verified paper records.
The House has passed a voting rights bill that contains provisions of both the John Lewis Act and the Freedom to Vote Act. On January 18, the Democrats in the Senate started debate on the bill with a simple majority.
Although there are enough votes to pass the bill with a simple majority, Democrats also need 50 votes to change Senate rules to allow cutting off debate and moving to a vote. The filibuster effectively requires 60 votes (including 10 Republicans) to advance legislation. Democrats do not have a majority to change the filibuster rules because Joe Manchin (D-West Virginia) and Kyrsten Sinema (D-Arizona) oppose overriding the filibuster for voting rights legislation.
Democrats are considering procedural maneuvers to allow the bill to pass with 51 votes without altering the filibuster rule. They would force Republicans to mount a talking filibuster to hold the Senate floor with procedural motions and speeches. It could go on for days or weeks, and Democrats hope that Republicans would tire of it and relent. But this strategy, which hasn’t been used in decades, poses major challenges. It is, in effect, a Hail Mary pass.
“I think the tragedy is that we have a Congress with a Senate that has a minority of misguided senators who will use the filibuster to keep the majority of people from even voting. They won’t let the majority senators vote,” King said in 1963.
As the Senate debates this voting rights bill, the American people will see for themselves how racist Republicans, aided and abetted by Manchin and Sinema, are stonewalling legislation that would protect the sacred right of everyone to vote.
Copyright Truthout. Reprinted with permission.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the bureau of the International Association of Democratic Lawyers. She is co-host of “Law and Disorder” radio.