The Voting Rights Act

Ari Berman points out in a Times op-ed that the Trump Supreme Court appointments will very likely kill the Voting Rights Act.

The ruling in Shelby was bad enough. What was the result of Shelby?

Fourteen states had new voting restrictions in effect in 2016, including strict voter ID laws, fewer opportunities for early voting and reductions in the number of polling places. These restrictions depressed turnout in key states like Wisconsin, particularly among black voters.

Now it will get much worse.

A grave danger comes from the Supreme Court. If Donald J. Trump appoints a justice in the mold of Antonin Scalia to fill the current vacancy, as he has pledged to do, there could be five votes to further gut the Voting Rights Act. Conservatives will target Section 2 of the law, which prohibits voting practices that discriminate on the basis of race or color. (This provision was successfully used to challenge voting restrictions in North Carolina and Texas this year.)

When the current chief justice of the Supreme Court, John G. Roberts Jr., was a lawyer in the Justice Department in the early 1980s, he led a charge against Section 2. He argued in a 1981 memo that the provision should block only those voting laws that were found to be intentionally discriminatory. This was a much higher standard (and in practice, much more difficult to establish) than showing that a voting law had a discriminatory outcome. “Violations of Section 2 should not be made too easy to prove,” Mr. Roberts wrote. If the Supreme Court were to adopt Mr. Roberts’s 1981 position today, the country’s most important civil rights law would be effectively dead.

We would go back to pre-1964. That would be horrific.

Mr. Trump’s Justice Department will also present a severe threat to voting rights. It could choose not to vigorously enforce the Voting Rights Act, instead pressing states to take more aggressive action to combat alleged voter fraud. This could include purging voter rolls and starting investigations into voter-registration organizations. As a United States attorney in the 1980s, Jeff Sessions, Mr. Trump’s choice for attorney general, charged black civil rights activists in Alabama with voter fraud. (They were acquitted.) He has called the Voting Rights Act “a piece of intrusive legislation,” and supported the Supreme Court’s Shelby decision, saying “if you go to Alabama, Georgia, North Carolina, people aren’t being denied the vote because of the color of their skin.”

Things will be bad in the states, too. And then there’s Congress.

Republicans in Congress could also jump into the fray. Senator Ted Cruz has introduced legislation to require proof of citizenship such as a passport or a birth certificate to vote in federal elections. Mandating a government-issued photo ID for federal elections — which disproportionately burdens low-income voters and minorities — is another top conservative priority. Kevin D. Williamson of National Review has called on Congress to repeal the 1993 National Voter Registration Act, which allows voters to register at the Department of Motor Vehicles and other public agencies.

The Voting Rights Act once enjoyed bipartisan support, but that consensus has collapsed. Recent elections illustrate that when more people vote, Democrats tend to do better, which is why Republicans want to restrict access to the ballot. After this year, the party that claimed the election was rigged will be the one doing the real rigging.

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