“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. saidIn 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 it seems certain that the legislation will fail.
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 the Civil War’s Reconstruction, the 15th AmendmentA new clause was added to the Constitution. It prohibits the federal government as well as the states from denying the right to vote based on race, color or past servitude.
The civil rights movement led to the 1965 passage of the landmark Voting Rights Bill (VRA) by Congress. It was intended to enforce the 15th Amendment. It ties racial disparity with the right of voting.
If the VRA prohibits voting changes, Effect or purposeIt is to reduce the citizens’ voting rights based on 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 more times with strong bipartisan majorities, and each reauthorization was signed into law by a Republican President, the Roberts Court has now seized the power of Congress to eviscerate the VRA.
The 2013 case of Shelby County v. Holder,The VRA’s provision that jurisdictions with a history of racism or discrimination must obtain preclearance by the Justice Department, or a panel of three federal Judges in the District of Columbia, before they can make voting changes was struck down by a 5-4 vote of the right-wing majority of court. Chief Justice John Roberts penned on behalf of Clarence Thomas and Samuel Alito, Antonin Scolia, and Anthony Kennedy.
The majority took a states’ rights approach (citing “equal sovereignty”) which will allow states to enact racist voting laws. They only considered the end to discriminatory voting tests and the absence of disparity between non-whites or whites in voter registration and participation since the enactment and implementation of the VRA. The court concluded that Section 5 preclearance, as required by Section 4, was no longer required.
Ruth Bader Ginsburg joined Sonia Sotomayor and Elena Kagan in filing a scathing dissident. “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 also mentioned racial voting and at-large voting, instead of district-by–district voting in large Black cities. She also mentioned vote dilution, which is the drawing of redistricting maps in such a way as to minimize the voting strength of the nonwhite population.
After Shelby, state after state enacted — and continue to enact — voter suppression laws. They make it difficult to get to polling places, prevent early closing of polls in Black or Brown communities, make it more difficult to receive mail ballots and reduce early voting. They also restrict voter registration and prevent accurate counting of votes. States such as Texas and Georgia have drawn extreme, gerrymandered maps that cement the power of Republican politicians.
Using baseless and alarmist claims about “voter fraud” (which is virtually non-existent) as a justification, states are passing voter identification laws that make it harder for marginalized communities to vote. GOP-led states insert Republicans into election process and allow state legislatures to overturn presidential election outcomes, even after certification by election officials.
2020 saw the Supreme Court make it harder to challenge voter suppression measures. Again, the court ruled 6-3, this time along ideological lines. 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 ShelbyMajority of the respondents stated. Two bills are pending in Congress to address the “current conditions” of voter suppression.
The John Lewis Voting Rights Advancement ActNew criteria would be established to determine which states and political subdivisions need preclearance before any changes in voting practices can take effect. Based on the number of voting rights violations that they have had over the past 25 year, states require preapproval. They no longer need preclearance after 10 years of no violations.
The Freedom to Vote ActVoter suppression is being repressed. It would allow early voting, online registration and same-day voting, protect voters from purges and ban partisan gerrymandering. It would also require the counting and verification of voter ID.
The House passed a voting rights bill, which includes provisions from both John Lewis Acts and Freedom to Vote Acts. The Senate Democrats began debate on the bill on January 18 with a simple majority.
There are enough votes to pass this bill with a simple majority. However, Democrats still need 50 votes in order to change Senate rules that would allow them to cut off debate and move to a vote. To move legislation forward, the filibuster needs 60 votes (including 10 Republicans). Democrats don’t have enough votes to alter the filibuster rules. Kyrsten Sinema (D. Arizona), and Joe Manchin, D-West Virginia, oppose any attempt to override the filibuster to vote rights legislation.
Democrats are looking at procedural maneuversTo allow the bill to pass with 51 votes, without changing the filibuster rule. They would force Republicans onto a talking filibuster to keep the Senate floor occupied with procedural motions, speeches, and other motions. It could drag on for days, or even weeks. Democrats hope that Republicans will get tired of it and give in to their demands. But this strategy, which hasn’t been used in decades, poses major challenges. It is, in essence, 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 said1963
The American people will be able to see how the racist Republicans, assisted and supported by Sinema and Manchin, are blocking legislation that would safeguard the sacred right of every voter.