Unfortunately, the court’s conservative majority has severely weakened the protections the law was intended to provide. The biggest blow came in a 2013 decision, Shelby County v. Holder. In that case, the five conservative justices, led by Chief Justice John Roberts Jr., gutted the heart of the act, which identified several states with long histories of voting discrimination, most in the South, and required them to get federal permission before changing their voting laws. While that remedy may have been a necessary response to 1960s-era racism, the chief justice wrote, “things have changed dramatically.”
In one sense, he was right: Racial discrimination in voting is no longer as blatant or systemic as it was in 1965. But the idea that the American fixation on race and power had magically evaporated in just a few decades was, at best, strikingly naïve. It was also disproved within hours of the court’s ruling, when Republican lawmakers in Texas and North Carolina, both states that had been covered by the Voting Rights Act, rammed through discriminatory new voting laws that they had been gunning to pass for years, including some that had been blocked under the act.
If this wasn’t enough evidence that things have not, in fact, changed dramatically, the point was driven home by the election of Donald Trump in 2016, and the resurgence of overt racism and white nationalism that has followed, with no meaningful pushback from the president.
In the years before Mr. Trump’s election and in the time since, Republican lawmakers around the country aggressively pushed through laws to make voting harder for certain groups, particularly minorities. Poll taxes and literacy tests have given way to voter-ID laws, cutbacks to early voting and same-day registration, polling place closings, voter-roll purges, racially discriminatory redistricting and felon disenfranchisement laws — most of which, though justified on race-neutral grounds, harm minority voters more.
They can also depress turnout, when voters who are not in fact blocked from voting become discouraged by a state apparatus that exudes hostility toward their attempts to exercise their fundamental right.
Are these laws, passed almost invariably by Republican lawmakers, intentionally racist? Or are they merely taking partisan advantage of the fact that black people today vote overwhelmingly for Democrats? It shouldn’t matter. Either way, black voters are targeted, their right to vote hampered.
In the past couple of years, lower federal courts — notably in Texas, Wisconsin and North Carolina, home to some of the worst voting laws in the country — have begun to recognize this. They have become more skeptical of lawmakers’ rationales for passing voting restrictions and have zeroed in on the real impact of such laws on minorities and other vulnerable groups. In striking down a remarkably harsh North Carolina law in 2016, the United States Court of Appeals for the Fourth Circuit found that lawmakers had targeted black voters “with almost surgical precision.”
This is an important step toward a robust judicial defense of voting rights. Now Congress must repair the damage the Supreme Court inflicted on the Voting Rights Act. The most important fix is to restore and strengthen the federal government’s oversight of states and localities that continue to discriminate in voting. This would stop bad laws before they could take effect. It would also eliminate the years of delays that are part of most election-related litigation.