United States: Black voting rights threatened again

December 11, 2023
a woman in front of a crowd
A recent legal appeal has further undermined the voting rights of people of colour in the United States. Photo: Johnny Silvercloud/Flickr (CC By 2.0 DEED)

A United States federal appeals court issued a decision on November 20 that could further undermine the right to vote for people of colour.

The decision curtails enforcement of the 1965 Voting Rights Act (VRA) and opens the door wider to a return to the so-called “Jim Crow” racist laws that once ruled the country’s southern states. The Jim Crow laws made it nearly impossible for African Americans to vote or function as equal citizens.

The VRA prohibits voting practices or procedures that discriminate on the basis of race or colour, but does not specify who can file a suit against violators of the law.

The case that sparked the appeal decision was launched in 2022, by voters’ rights groups in Arkansas. The plaintiffs argued that a new map of congressional districts weakened Black voters’ electoral power in the state.

US District Court Judge Lee Rudofsky dismissed the case on the grounds that the federal Department of Justice (DOJ) did not join the plaintiffs in their suit.

The matter will now likely be appealed to the Supreme Court.

Individuals and groups denied

The federal appellate court (the 8th Circuit Court) upheld Rudofsky’s decision, ruling that the VRA can only be enforced by the US Attorney-General and that only the US government can sue to enforce it.

As reported by the Washington Post, in their decision, the judges noted that, in the past 40 years, at least 182 successful enforcement actions under Section 2 of the VRA have been filed and, of those, only 15 “were brought solely” by the Attorney General.

In its majority opinion, Judge David Stras — another Trump appointee — wrote that while courts have, “for much of the last half-century”, “assumed” that Section 2 is enforceable, “a deeper look has revealed that this assumption rests on flimsy footing”.

In his dissenting opinion, Chief Judge Lavenski Smith — a George Bush appointee — said that, while “admittedly, the Court has never directly addressed the existence of a private right of action under [Section 2],” the court has “repeatedly considered such cases, held that private rights of action exist under other sections of the VRA, and concluded in other VRA cases that a private right of action exists .”

“Until the Court rules or Congress amends the statute, I would follow existing precedent that permits citizens to seek a judicial remedy,” Smith wrote. “Rights so foundational to self-government and citizenship should not depend solely on the discretion or availability of the government’s agents for protection.”

Paul Smith, senior vice president at the Campaign Legal Center told the WP: “Eliminating individual people’s right to sue” under the VRA “runs contrary to settled law, common sense and any basic concept of fairness: When the government discriminates against people, they should have a right to fight back in court.”

Wendy Weiser, who directs the Democracy Program at the Brennan Center for Justice at New York University School of Law, told the WP that the 8th Circuit Court’s decision suggests an environment “where judges feel like it would be permissible for them to just rewrite the law, upend precedent, and core rights and protections”.

“The intent of the civil rights law, which outlaws racial discrimination as it relates to voting, has typically been enforced by lawsuits from these groups, not by the government itself.”

VRA basically gutted

The Supreme Court has sought to weaken voting rights for African Americans over the past decade, falsely claiming race is not or should be a consideration in court rulings.

Section 4 of the VRA, which was overturned by the Supreme Court in 2013, mandated that the DOJ be contacted before certain states could re-map voting districts or re-write electoral laws.

Sections 4 and 5 prevented new voting maps from being drawn without such pre-approval.

The vote to overturn Section 4 was a 5-4 majority. Immediately after that decision, states across the South passed new anti-voting laws that restricted Black voting rights.

Since 2013, Section 2, allowing individuals and groups to file suits has been the only pathway for civil and voting rights groups to fight state discriminating decisions.

What happens next?

Since 2013 the Supreme Court has heard cases filed by civil rights groups and individuals. It did not mention that only the Justice Department must file the suits.

For example, the Supreme Court ruled in June, in a 5-4 decision, against an Alabama congressional map that included just one district with a majority of Black voters, requiring the drawing of a new map in that state.

Abha Khanna — who argued the case before the Court — told the WP it would ensure that districts in Black communities are drawn as they were intended under the VRA.

In November, the conservative US Court of Appeals for the 5th Circuit ruled to affirm the right of individuals to bring such actions before the court.

If the Supreme Court upholds the 8th Circuit Court decision, it could “gut” nationwide limited protections of voting rights and essentially limit cases to “what the Department of Justice can and chooses to take on,” Khanna said.

Few civil and voting rights advocates expect the Supreme Court to protect voting rights. The court only last year said the use of affirmative action college admissions pathways for African Americans and other people of colour was unconstitutional, declaring the Constitution as “colour blind”.

The role of the Supreme Court for most of its history has been to limit equal rights for Black people and other people of colour. The exception was during the mass civil rights movement in the 1960s, when historic civil rights and voting rights legislation was adopted and upheld by the court.

This is a reminder of how quickly advances in equality can occur and be rolled back again.

After the second American Revolution, the Civil War of 1861‒65, freed slaves won the right to vote and became close to equal citizens, a few being elected to office and owning land.

But in 1877, Union troops who were protecting former slaves from white supremacist attacks in the South were withdrawn.

Within 10 years, Jim Crow segregation laws were enacted across former slave states and Black people lost most of the civil rights written into the post-Civil War Constitutional amendments.

It took nearly a century (until the 1960s) to win those civil rights back. That’s why the Supreme Court’s 2013 decision was seen as a major blow, and why this latest ruling is seen so gravely.

What is needed in response is a new civil rights struggle. It is the only way to reverse these decisions that uphold the Founding Fathers’ legacy of white supremacy.

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