What you need to know about the latest legal challenges to this landmark civil rights law.n democracy, in part because voting is too difficult.

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From the Desk of Trevor Potter
Guest written this month by CLC Senior Vice President Paul Smith.
Dear John,


Less than a year ago the U.S. Supreme Court surprised many of us who practice election law with a ruling that preserved a key provision of the federal Voting Rights Act (VRA), the landmark civil rights law that has been responsible for more progress against racial discrimination in our elections than any other law ever passed.

CLC Senior Vice President Paul Smith

The case addressed Section 2 of the VRA, which prohibits voting practices or procedures that discriminate on the basis of race. The Court’s June 2023 decision in Allen v. Milligan ([link removed]) said Alabama had violated Section 2 by creating a congressional district map containing only one majority-Black district. Alabama had hoped to persuade the Court to nullify Section 2, and voting rights advocates were heartened when the Court did not.

But I am concerned that this victory may be short-lived.

VRA opponents are mounting new challenges ([link removed]) to the law, hoping the Supreme Court will revert to its tendency over the last couple of decades to favor legal arguments that restrict voting rights as opposed to strengthening or expanding them.

Threat: Forbidding private lawsuits under the Voting Rights Act.

One high-profile example comes from Arkansas, where a challenge to the long recognized right of private individuals and organizations to bring lawsuits under Section 2 has succeeded so far and is likely to be heard ([link removed]) by the Supreme Court.

The state’s arguments against a “private right of action” are totally at odds with decades of precedent. If these arguments are accepted, the U.S. Department of Justice (DOJ) could become the only party able to bring lawsuits under the VRA. If that happens, it would vastly reduce enforcement of Section 2, leaving many voters of color without an equal opportunity to elect candidates of their choice.

CLC is one of many organizations representing clients from communities of color who have gone to court to rectify the harm done by discriminatory voting and redistricting laws. Examples include Native Americans suing for fair districts in North Dakota ([link removed]) and Latino voters doing the same in Washington state’s Yakima Valley ([link removed]) .

But the private right of action threat is just one of several facing the VRA.


Threat: Removing existing authority to challenge discriminatory laws.

Officials in Alabama and Louisiana are floating legal arguments suggesting that progress against discriminatory voting laws has reached a point where Section 2 of the VRA is no longer necessary.

Those bringing these challenges are leaning on the Supreme Court’s 2013 ruling in Shelby County v. Holder ([link removed]) , which neutered another key provision of the VRA under similar pretenses. Until that decision, Section 5 of the VRA was used to by the U.S. Department of Justice to stop discriminatory voting laws from taking effect. The opinion in Shelby County, which removed this authority, included the now infamous statement by Chief Justice Roberts that “things have changed dramatically” in the South since 1965.

It is widely acknowledged that states and localities with a history of voter discrimination rushed to pass new discriminatory laws following the Shelby County decision. There is no reason to expect anything different if Section 2 is similarly undercut.


Threat: Preventing communities of color from forming coalition districts under the VRA.

The underlying purpose of the VRA is to ensure equal representation for communities of color in our government. Sometimes, the best way to achieve this goal is to group together voters from different communities who live in the same area and who share a history of past and present-day discrimination. They can be combined into what are known as “coalition districts.”

CLC is involved in Pettaway v. Galveston County, ([link removed]) a case in which Black and Latino voters are suing to restore an effective coalition district that had existed for decades. Galveston is arguing that the VRA was never meant to protect coalition districts.

What is clear is that eliminating coalition districts would reduce opportunities to elect candidates from communities of color.


Threat: Forbidding VRA lawsuits challenging at-large elections.

In at-large elections, voters cast their ballots for all candidates running for a seat in a collective body — often a county or city council race. In communities with a white majority where voting tends to break down along racial lines, at-large elections often have the effect of preventing communities of color from electing any representatives of their choice, even if they make up a significant portion of the population.

Voters in Virginia Beach, VA spent years suing over the at-large election of city council members. Represented in court by CLC, they eventually won a ([link removed]) judgment ([link removed]) saying that system violated Section 2 of the VRA.

The current threat to this remedy comes from Georgia, where voters are challenging the state’s at-large system for electing members of the Public Service Commission. A ruling last year in that case by the 11^th Circuit Court of Appeals essentially places the policies preferred by Georgia lawmakers above the rights of voters disenfranchised by the at-large system.


What do these threats mean?

The Voting Rights Act was enacted in 1965 in response to the horrific oppression of Black voters in the South. The long history of VRA litigation since then shows a near constant battle between those who would use the law to strengthen our democracy and those who oppose equal representation for all.

We don’t know how the latest skirmishes over the VRA will ultimately play out in the courts. What we can say, however, is that this legal conflict is likely to continue no matter how a particular case is decided. This means all of us who are dedicated to creating a better, more representative democracy must remain vigilant.
Sincerely,

Paul Smith
Senior Vice President, Campaign Legal Center
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