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Suppression is in Session

Illustration by Haimeng Ge

Ninety-five years after the passage of the Fifteenth Amendment, which gave African American men the right to vote, Congress finally sought to create a voting system reflective of the US Constitution’s emphasis on equal political representation. Civil Rights-era reforms ushered in the 1965 Voting Rights Act (VRA), which targeted oppressive Jim Crow voting laws such as poll taxes and literacy tests. The law prohibited states and jurisdictions from passing discriminatory or restrictive voting legislation without federal approval. To accomplish this, it instituted preclearance requirements, which mandated that states with historically discriminatory election policies seek federal approval before amending voting laws and appointed federal examiners to oversee voter registration in certain states. Starting in 1982, courts created a results test to determine whether a state or jurisdiction’s laws violated the VRA.

The VRA led to an increase in Black voter turnout rates in the South—eventually matching the rest of the country. Black turnout in the South increased from 44 percent in 1964 to a record high of 65 percent in 2008. Despite the VRA’s success, it has come under fire from conservatives. For decades, the VRA has faced cycles of litigation, which have enabled onslaughts of voting restrictions. Conservative legal strategist Edward Blum has advanced a Republican strategy that seeks to use the current conservative Supreme Court to decrease minority voter turnout and thus increase the party’s competitiveness in many important races. In the 2013 Shelby County v. Holder Supreme Court decision, Blum succeeded. The case abolished the preclearance requirement contained in Section Five of the VRA, thus allowing states with histories of discriminatory laws to pass restrictive voting legislation without first obtaining federal approval. 

Almost a decade later, in the 2021 Alito-penned Brnovich v. DNC opinion, the Court dealt an even more significant blow to voting rights. Justice Alito argued that a state’s law enforcement interests should be prioritized over a voting law’s disparate impact. This opinion directly struck at the core of the VRA, laying the groundwork for states to restructure voting systems at the expense of minority voters. Sure enough, a wave of new laws immediately followed the ruling, overwhelmingly in GOP-controlled states. 

Brnovich addressed House Bill (HB) 2023, passed in 2016 in Arizona—the tightly contested swing state where President Joe Biden eked out a 10,457 vote victory in 2020. The law banned the use of third-party ballot collection services and out-of-precinct voting. In the five years of legal battles that followed, the DNC asserted that the law violated Section Two of the VRA, which outlaws the “abridgment of the right of any citizen of the United States to vote on account of race or color.” Testimony included in the case emphasized that third-party ballot collection was utilized disproportionately in Arizona’s Native American and Hispanic communities, who were more likely to lack access to adequate transportation or mail. Nevertheless, in a 6–3 ruling, the Supreme Court determined that the law was not racially discriminatory in either results or intent. 

Beyond the specific decision about Arizona’s law in Brnovich, the details of the opinion broadly invalidate the crux of Section Two. Prior to Brnovich, courts were told to weigh the tenuity of a state’s rationale against the potential disproportionate impacts of a bill—emphasizing the need for concrete evidence of threats to election integrity before restrictive laws can be passed—in order to avoid possible discrimination. In Arizona, there were no recorded cases of third-party ballot collection fraud when HB 2023 was passed, suggesting that the ban rested on tenuous justification. However, in Brnovich, Alito replaced the results test of 1982 with five new guideposts for determining a Section Two violation. While the third guidepost focuses on assessing disparate burdens of voting legislation on minority voters, the fifth guidepost effectively nullifies the concern, stating that the strength of state interest outweighs any potential disparate burden. Applying this rationale to Arizona’s law, Alito asserted that “even if the plaintiffs had shown a disparate burden caused by HB 2023, the State’s justifications would suffice to avoid [Section Two] liability,” with the state justification in question being the broad interest of preventing electoral fraud “without waiting for it to occur within its own borders.” 

As a result of the five guideposts, states are free to pass laws irrespective of discriminatory impact to prevent crimes that have not occurred. Alito has returned control to the very jurisdictions that participated in Jim Crow, as if voter suppression and systemic racism are issues confined only to the past. The result has been a proliferation of voting rights restrictions in the name of “election integrity.” For example, in 2019, following a close 2018 gubernatorial race in which Democratic candidate Stacey Abrams used third-party ballot collection to increase minority voter turnout in Atlanta suburbs, Georgia passed HB 316, a law that enacted restrictions on third-party collection. 

In the wake of former President Donald Trump’s claims of election fraud in the 2020 US presidential election, the race to restrict voting has only accelerated. In 2023 alone, at least 14 states have enacted 17 restrictive voting laws, often targeting mail-in voting and ballot drop boxes. All but one of these states are GOP-controlled, and all 17 laws will be in effect for the 2024 election. 

Republicans conscious of the GOP’s subpar performance amongst minority voters may justify their opposition to the VRA as necessary to prevent electoral fraud. However, state governments previously subject to preclearance requirements have unsurprisingly been quick to betray their true motives: suppressing minority voters for political gain. Look no further than Alabama’s proposed 2022 congressional map. Despite Black Alabamians making up over a quarter of the state’s population, the gerrymandered map effectively allowed them adequate representation in only one of seven districts, which even the Supreme Court ruled unconstitutional in the 5–4 Allen v. Milligan decision. While this recent protection of minority representation is perhaps reassuring, it does not erase the series of cases before Milligan that have repeatedly chipped away at the VRA. Purposefully and methodically, the Court has funneled power back into state legislatures, allowing them to justify racially discriminatory laws with the words of the country’s highest court. As voters are finding it increasingly difficult to defend their interests over those of the same institutions that perpetuated Jim Crow in the not-so-distant past, the supposed egalitarianism of post-Civil Rights American democracy is under threat. While it remains to be seen whether new restrictions will dramatically affect the results of the 2024 elections, the impaired VRA represents the Court’s departure from its self-professed duty to scrutinize laws targeting minorities and signals a potentially insidious extension of state power.