A Requiem for Our Right to Vote

With all the frightening news coming from the Kremlin, you could be forgiven for missing the latest body blow to the Voting Rights Act when it landed last week. A Trump-appointed judge in Texas, Lee Rudofsky, single-handedly tossed out a major enforcement mechanism for the Voting Rights Act that gave Black voters equal access to the ballot box. 

In Arkansas State Conference NAACP v. Arkansas Board of Apportionment, the Arkansas chapter of the NAACP had sued the state over a reapportionment that diluted the voting power of Black voters. Doing that is explicitly against the law, as Section 2(a) of the Voting Rights Act says that no state can impose a voting-related qualification or restriction “which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” Arkansas had redrawn maps in a gerrymandered fashion that, even Judge Rudofksy agreed, were likely in violation of this section. 

Then Rudofsky took a hard turn into right-wing anti-voting rhetoric—unsurprising for a Trump-appointed judge. Despite believing the current voting map in Arkansas discriminates against Black voters, Rudofksy, in a too-cute-by-half move, went on to say that there’s just nothing to be done about it because private organizations can’t sue under the Voting Rights Act. Rudofksy’s stance, one that has been floated in right-wing circles before, is that only the United States Attorney General can bring actions under the VRA.

This might seem like a technicality, but it’s not. First, it flies in the face of decades of litigation over the VRA. Private civil rights groups have been the driver of voting rights litigation basically since the country codified voting rights legislation in the 1960s. The NAACP’s Legal Defense Fund is litigating at least four voting rights cases right now, for example. Having private organizations pursue these cases, rather than kicking them all to the federal level, is key for two reasons. 

First, when the GOP regains control of the presidency and thus the DOJ, they will do nothing to preserve voting rights. Under the Trump administration, the DOJ pursued literally zero cases under the VRA. George. W. Bush largely let Hans von Spakovsky run the voting rights show, and Von Spakovsky was not at all interested in ensuring equal access to the ballot, instead pushing racist voter ID laws. Von Spakosky’s tenure at the DOJ was so bad that over half the career voting rights lawyers left in protest and the Obama administration basically had to rebuild the voting rights section of the agency. 

Next, in spite of Rudofksy’s smug assertion that “the Court is confident that the Attorney General of the United States has the resources to litigate this Voting Rights Act case,” there’s nothing in his ruling to suggest that is the case. Further, the DOJ doesn’t have the flexibility to fund cases the way a private group might, such as by fundraising or having lawyers handle the matter pro bono. 

Rudofsky also acknowledges that his decision, if appealed, would go to the Eighth Circuit Court of Appeals. That court, however, has already ruled that private entities can bring lawsuits under Section 2 to stop vote dilution of people of color. Never mind, says Rudofsky, declaring that if he’s wrong, the Eighth Circuit and the Supreme Court will overrule his decision.

Except Rudofsky, like every other conservative Trump appointee, knows full well that the current composition of the Supreme Court would be more than happy to further gut the VRA.

Recall the 2013 decision in  Shelby County v. Holder, when Chief Justice John Roberts cut out the beating heart of the Voting Rights Act by throwing out the “preclearance” requirement. Preclearance required certain jurisdictions with a long history of discrimination against Black voters to submit proposed election law changes to the DOJ, which could overrule the proposed change if it was discriminatory. 

Since the decision in Shelby, GOP-dominated states, particularly Southern states, have been on a voter suppression rampage. 

This was always the endgame, particularly for John Roberts, who started his legal career by clerking for Justice William Rehnquist, an untrammeled, unrepentant racist. When Rehnquist was a law clerk, he wrote such gems as “it is about time the Court faced the fact that the white people of the South do not like the colored people,” opposing Brown v. Board of Education, and urging the Court to reaffirm Plessy v. Ferguson. Plessy, a case from 1896, upheld the “separate but equal” doctrine. 

Roberts then went to work for the DOJ, where one of his first acts was to work on weakening proposed enhancements to, you guessed it, Section 2 of the VRA. With that, there’s no reason to believe he wouldn’t agree with Rudofsky’s decision to gut that Section. Further, all six conservative justices have just reaffirmed their commitment to crushing voting rights in 2021’s Brnovich v. Democratic National Committee, making it harder for groups to prevail in certain voting rights cases, and finding that if a state raises a compelling interest in “election integrity,” it can trump Section 2 liability. 

So, let’s recap: No more preclearance. No private groups can bring voting rights lawsuits. Handwave vaguely about “election integrity” and your state can avoid liability under the VRA. This is grim, grim stuff.

It’s grim in the same way that the conservative assault on abortion rights is grim. Just as Americans overwhelmingly support better access to the ballot box, they overwhelmingly support abortion. That’s why you likely won’t see the Supreme Court outright toss laws like the VRA or cases like Roe v. Wade. Instead, the Supreme Court can just pick at the edges of our rights, nibbling here, chomping there, leaving us with theoretical ways to preserve our rights, but limited in such a fashion that we’re utterly unprotected. 

The way to solve this, of course, would be to pass new laws like the John Lewis Voting Rights Act, which would reinvigorate voting rights by restoring the preclearance requirement, among other things. The way in which it can’t be solved is precisely the mechanism Rudofsky demanded, which is that the DOJ bring case after case. Attorney General Merrick Garland has already made clear he will pursue voting rights cases, but how would the DOJ succeed if the underlying voting rights law is eviscerated? 

However, the moment to fix voting rights in America is slipping away. Passing the John Lewis Voting Rights Act in the Senate would require either that the Senate get rid of the filibuster or that a sufficient number of Republicans cross the aisle to vote with Democrats. Neither of those is likely. Meanwhile, since the 2020 election, at least 17 states have passed laws making it harder to vote.

When he was still in office, Trump urged these sorts of laws, outright admitting that if you have high voter turnout, “you’d never have a Republican elected in this country again.” State-level Republicans have echoed this, as has Sen. Mitch McConnell. The GOP knows it can’t win when, as was the case in 2020, voter turnout surges. So, they have to make sure voter turnout stays low, and the federal courts appear perfectly ready to help them do just that. 

In the end, there are a lot of court cases and a lot of fancy writing and a lot of legislative wrangling, but we’re running out of time, and we’re running out of options. It’s going to be really bad for a really long time.