[The Supreme Court’s conservative supermajority returns to one
of its favorite victims.]
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WHAT WILL BE LEFT OF THE VOTING RIGHTS ACT?  
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Michael Waldman
May 31, 2023
Brennan Center for Justice
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_ The Supreme Court’s conservative supermajority returns to one of
its favorite victims. _

, Jason Armond/Getty

 

June is the cruelest month. Tomorrow begins the weeks of decisions to
be announced by the Supreme Court as its term draws to a close. Once
again we will wait to find out how far the six conservative justices
will push — and what kind of country we will live in. I discuss the
perils of this moment in my new book, _The Supermajority_
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out next Tuesday. 

One of the most important rulings will come in a major case on the
Voting Rights Act, _Allen v. Milligan_. It could also be one of the
most damaging. That statute was by some measures the most effective
civil rights law on the books. And over the past decade, the Court led
by Chief Justice John Roberts has demolished it, bit by bit. 

The background of the Voting Rights Act will be familiar to readers of
this newsletter. Although the 15th Amendment, ratified in 1870,
guaranteed Black Americans the right to vote, states found countless
ways to deter, dilute, and deny those votes for nearly a century. 

Then came Bloody Sunday
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Violent attacks on civil rights protesters horrified the nation, awoke
a collective sense of justice, and galvanized our political leaders to
act. On August 6, 1965, less than five months after the march,
President Lyndon Johnson signed the Voting Rights Act into law. It
created our modern, multiracial democracy — an American success
story. 

But in the early 1980s, a young lawyer in the Reagan administration
named John Roberts furiously opposed a bill renewing and clarifying
the act. He lost that battle, but his war on the law was just
beginning. He would in many ways make his crusade against the Voting
Rights Act the signature issue of his career.

First came _Shelby County v. Holder_ in 2013. The law’s Section 5
required states with a history of racial discrimination to get
permission from the Justice Department or a federal court before
changing voting practices. At the argument, Antonin Scalia called this
a “racial entitlement.” The audience gasped. Scalia did not write
the opinion, though; Roberts did, and he was more decorous. The South
had changed, he explained. That was then, this is now. The Court
effectively ended Section 5.

Within hours, states began to implement discriminatory voting laws.
Texas, for example, implemented a voter identification law that
instantly disenfranchised 608,000 registered voters, according to a
federal judge.

Weak and wobbly, there was something left of the Voting Rights Act:
Section 2. That lets you sue after the fact to prove discriminatory
voting practices. Voting rights groups including the Brennan Center
began to use it to challenge the new wave of voter suppression laws
— with heartening success. We won our case against the Texas law,
for example. Then in 2021, in _Brnovich v. Democratic National
Committee, _the Court made it much, much harder to use Section 2
against discriminatory voting laws. 

All of which brings us to the upcoming case. For decades, Section 2
has been a potent protection against racial gerrymandering, the
drawing of legislative lines to dilute the power of the vote for
communities of color. In fact, challenging gerrymandering is the main
way Section 2 has been used before. That law’s strength may soon be
a memory.

In the case, Alabama’s mapmakers packed as many Black voters as
possible into an already existing majority-black district, then
surgically distributed the remainder among other districts to ensure
that they could not assert political power. Black voters could elect a
candid­ate of choice in only one of seven districts despite making up
over a quarter of the state’s voting age popu­la­tion. The Court
may bless that. (Talk about “racial entitlements”!)

Ruth Bader Ginsburg wrote a memorable dissent in _Shelby County_. She
warned, “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.”
In the decade since, the white-Black voter turnout gap grew between 9
and 21 percentage points
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five of the six states originally covered by Section 5 of the Voting
Rights Act. Maybe other factors caused this gap to grow. But an
eviscerated rights law surely won’t help. 

On many things, John Roberts has been prudent, canny, an
institutionalist. When it comes to the law of democracy, he has been
the activist leader of a disciplined conservative cadre. The
supermajority, I fear, is just getting warmed up.

MICHAEL WALDMAN is president and CEO of the Brennan Center for Justice
at NYU School of Law. A nonpartisan law and policy institute that
focuses on improving systems of democracy and justice, the Brennan
Center is a leading national voice on voting rights, money in
politics, criminal justice reform, and constitutional law. Waldman, a
constitutional lawyer and writer who is an expert on the presidency
and American democracy, has led the Center since 2005. He was a member
of the Presidential Commission on the Supreme Court of the United
States in 2021., 

Waldman was director of speechwriting for President Bill Clinton from
1995 to 1999, serving as assistant to the president. He was
responsible for writing or editing nearly two thousand speeches,
including four State of the Union and two inaugural addresses. He was
special assistant to the president for policy coordination from 1993
to 1995.

Waldman is the author of the forthcoming book _The
Supermajority: __How__ the Supreme Court Divided America_ (Simon &
Schuster, June 6, 2023). The court’s 2022–2023 term, he argues,
was the most consequential in decades, with decisions such
as _Dobbs_, _Bruen_, and _West Virginia v. EPA_ reshaping American
politics. Waldman explains how the court has gained so much power over
Americans’ lives with so little connection to the public will. He
shows the supermajority’s dangerous reliance on a newfound, radical
“originalism.” He traces the similarities between this court and
its most activist and controversial predecessors. And he offers a path
forward. Kirkus Reviews called it “a damning account of a Supreme
Court gone wildly activist in shredding the Constitution.” Jane
Mayer of _The New Yorker _called _The Supermajority_ “nothing
less than a public service.”

Waldman is also the author of _The Fight to Vote_ (Simon & Schuster,
2016, reissued in 2022), a history of the struggle to win voting
rights for all citizens. _The Fight to Vote_ was a _Washington
Post_ notable nonfiction book for 2016. The _ Post_ wrote,
“Waldman’s important and engaging account demonstrates that over
the long term, the power of the democratic ideal prevails — as long
as the people so demand.” The _Wall Street Journal_ called it
“an engaging, concise history of American voting practices,” and
the _Miami Herald_ described it as “an important history in an
election year.” 

Waldman is also the author of _The Second Amendment: A
Biography_ (Simon & Schuster, 2014). _Publishers Weekly_ called it
“the best narrative of its subject.” In the _New York Times_, Joe
Nocera called it “rigorous, scholarly, but accessible.” The _Los
Angeles Times_ wrote, “[Waldman’s] calm tone and habit of taking
the long view offers a refreshing tonic in this most loaded of
debates.” In a _Cardozo Law Review_ symposium devoted to the book,
a historian wrote, “_The Second Amendment_ is, without doubt, among
the best efforts at melding constitutional history and constitutional
law on any topic — at least since the modern revival of originalism
two generations ago.”

His previous books are _My Fellow Americans: The Most Important
Speeches of America’s Presidents from George Washington to Barack
Obama_ (2003, reissued 2010), _A Return to Common
Sense_ (2007), _POTUS Speaks_ (2000), and _Who Robbed America? A
Citizen’s Guide to the S&L Scandal_ (1990).

_You’ve been read­ing The Brief­ing, Michael Wald­­­­­man’s
weekly news­­­­­­­­­let­ter from the BRENNAN CENTER FOR
JUSTICE. Click __HERE_
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receive it every week in your inbox._

* Supreme Court
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* Voting Rights Act
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* Fifteenth Amendment
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* Shelby County v. Holder
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* Brnovich v Democratic National Committee
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* Gerrymandering
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