Opinion: Gutting voting rights is on the table


Published: 12-11-2023 5:08 AM

Modified: 12-12-2023 6:57 PM

Jonathan P. Baird lives in Wilmot.

Normally a decision by a federal appellate court would not be considered big news. But in a two-to-one ruling, the 8th Circuit Court of Appeals, which has jurisdiction over eight states, effectively gutted the Voting Rights Act (or VRA). This is the law that civil rights groups have used to challenge racial discrimination in voting.

In the case, Arkansas State Conference NAACP v Arkansas Policy Panel, the court ruled that the NAACP did not have the right to bring the case of racial discrimination alleged because there was no private right of action under the law. That is legal-speak for the court saying the NAACP or any other civil rights group cannot sue under the VRA. The court said only the Department of Justice can bring a lawsuit under that law.

The case will almost certainly go up to the Supreme Court. It is hard to overstate the importance of the case. If the Supreme Court upholds the 8th Circuit decision, civil rights groups wouldn’t be able to challenge discriminatory voting practices like gerrymandered maps, redistricting, and voter ID requirements. The 8th Circuit would outlaw most efforts to ensure Americans are not denied the right to vote on the basis of race.

Up until now, it has been overwhelmingly private parties who have brought successful lawsuits under the VRA. Over the last 40 years, of the 182 successful lawsuits brought under the VRA, the Department of Justice only brought 15. That reflects both the lack of resources as well as the priorities of the Department of Justice. For example, during the Trump presidency, the Department of Justice only brought one case under the VRA. Republicans have shown zero interest in enforcing the VRA.

It is clear that Congress had intended to allow private enforcement of the law but opponents of the VRA have jumped on the fact that the text of the law doesn’t say so explicitly. The opponents belittle 58 years of cases, including many at the Supreme Court, where this was never raised as an issue. Even worse the opponents belittle the centrality of the voting rights struggle in American history.

I would suggest that it is impossible to appreciate the significance of the 8th Circuit decision outside the broader context of U.S. history and the struggle to create a multi-racial democracy. The VRA passed in 1965 under the Lyndon Johnson administration. The law is a testament to the bloody struggles fought to counter suppression of Black voters across the South.

Preventing Black people from voting was central to the white supremacist project. White citizen councils in southern states blacklisted registered Black voters to try and deny them essential services. The white citizen’s councils could get white elites to cut off credit and deny employment to Black people. They could get sharecropping Black people who registered to vote evicted. Intimidation was the name of the game.

Voting rights activists were beaten and arrested for trying to vote. SNCC activist Herbert Lee was murdered in 1961 after he started attending voter registration classes. Voter suppression and violence were key tools of the white supremacists.

Although the right to vote was supposedly guaranteed under the 15th Amendment which came into being after the Civil War, it turned out the right was anything but guaranteed. It had to be fought for continuously. After the Civil War and Reconstruction, both political parties allowed the disenfranchisement of Black voters. Courts didn’t stand up to Jim Crow and gave constitutional blessing to white supremacy.

Adam Serwer has written that the pattern was set by the Supreme Court decision in the case of United States v Cruikshank in 1876. In the context of a contested election and efforts to disallow minority voting registration, Black people were supporting the election of Republican candidates. A white mob descended on the courthouse in Colfax, Louisiana in April 1873 where Black people were making a stand. Totally outgunned, a massacre ensued after the courthouse was set ablaze. Fleeing Black people were executed.

Seventy-two white men were indicted for the crime of slaughtering over one hundred Black men. Federal charges were brought under the Enforcement Act of 1870 which had been designed for prosecution of the Ku Klux Klan.

The Supreme Court ruled that the federal government lacked the authority to charge the perpetrators. This was one of the worst decisions in the history of the Supreme Court. The Court framed their decision in the language of limited government and individual liberty but the Court gave free rein to the white supremacists. The author of the opinion, Justice Joseph Bradley, relied on the fact that the murderers had not declared their crimes were done with a design to deprive the victims of their rights on account of race.

So we have white racists carrying out a massacre but the Court somehow found it was not because of race. This was the template for allowing Jim Crow to proceed. The Reconstruction amendments were written to reverse Dred Scott but the Court was saying the Bill of Rights did not apply to freedmen. Without federal protection, injustice ruled in the southern states.

For the next 75 years, the courts failed people of color and actually encouraged the rise of white supremacy. They gave judicial sanction to a regime of racial fascism. The law professor Randall Kennedy has written, “For a large portion of American life people of color have been treated unjustly, and for most of that period the Supreme Court has found ways to rationalize that.”

Unfortunately what we are seeing now is a continuation of a long-standing pattern. The absurdity of Cruikshank was the idea that a racist slaughter could be carried out without punishment if the perpetrators did not say it was done to promote racism. Just as courts backed off on the Black voting rights struggle after Reconstruction, the same thing is happening now in the aftermath of the civil rights movement. Courts are chipping away at the VRA as the 21st-century way to update the disenfranchisement of Black voters.

The strategy of the conservative legal movement is to make it impossible for legal challenges to racist practices to go forward. The 8th Circuit Arkansas case is a perfect example. The gerrymandered electoral map the NAACP challenged weakened Black voting power in the state. If no one like the NAACP or the ACLU can bring a case, the gerrymandering will stand. It used to be poll taxes and literacy tests. Now it is short-circuiting the private right of action.

How the Supreme Court resolves the Arkansas case will be telling. While Chief Justice Roberts has a history of hostility to the VRA (Shelby County decision comes to mind) he did author a recent Alabama decision, Allen v Milligan, that protected Section 2 of the VRA.

This Arkansas case may be too much even for Chief Justice Roberts. Saying civil rights groups have no right to sue under the VRA (something they have been doing for over 50 years) is not just wrong, it is contrary to common sense. A decision upholding the 8th Circuit in the Arkansas case could cause absolute chaos. States that have lost cases to private parties could conceivably sue to reverse their VRA verdicts. The number of VRA cases brought would drastically plummet.

Pretending that racial discrimination in voting is essentially over is fantasy land. Underneath the Arkansas case is the question: what kind of America will we be? Will we be going back to the 19th century dark ages or will we move forward toward the goal of vibrant multi-racial democracy? We have come too far to go back.