In 2021 Republican legislatures in 19 states passed 34 laws that restricted access to voting in more than a dozen different ways. And those are just the bills that succeeded; hundreds of other provisions, some still under consideration, were introduced nationwide.
“The momentum around this legislation continues,” the Brennan Center for Justice, which tracks these efforts, wrote on its Web site. At least 165 restrictive voting bills were already on the docket for this year by mid-January. “These early indicators—coupled with the ongoing mobilization around the Big Lie (the same false rhetoric about voter fraud that drove [last] year’s unprecedented wave of vote suppression bills)—suggest that efforts to restrict and undermine the vote will continue to be a serious threat in 2022.”
The GOP has justified voting restrictions by saying that it is safeguarding elections against fraud and that certain protections against electoral bias are no longer necessary. Evidence belies this ploy to seize power by disenfranchising voters, especially minorities, who tend to vote Democratic. Voter fraud is exceedingly rare in the U.S. and hasn’t increased since the 1965 Voting Rights Act. But minority suffrage has grown tremendously, and the benefits of federal oversight have persisted. Alarmed by this trend, conservative legislators and jurists began chipping away at codified voting rights decades ago. They stand to gain even more ground during this year’s midterm elections if left unchecked.
While odious lies about a stolen election propelled the current wave of restrictions, the path that led to this point was laid back in 2013. In the case of Shelby County v. Holder, the Supreme Court dismantled a key pillar of the Voting Rights Act called “preclearance,” which required jurisdictions with a history of discrimination to get Justice Department or federal court approval for any planned changes to electoral rules. Arguing that patterns of discrimination had changed, Chief Justice John Roberts wrote in the majority opinion that Congress should not use “a formula based on 40-year-old facts having no logical relation to the present day.”
Desmond Ang, an expert in public policy and race at Harvard University, disagrees, saying that preclearance is as essential to civil rights today as it ever has been. According to an analysis he published in 2019, that critical provision of the Voting Rights Act alone “continued to bolster enfranchisement over four decades later,” especially among minorities. So enduring were the benefits, he wrote, that “broad preventative oversight encompassing the universe of potential voting changes may be the most effective means of curbing discrimination in settings like the United States, where electoral rulemaking is highly decentralized and opaque.”
In a similar vein, sociologists Nicholas Pedriana and Robin Stryker concluded in a 2017 comparative analysis that of three seminal civil rights laws passed in the 1960s—the Voting Rights Act, the Fair Housing Act and the equal employment opportunity provisions of the Civil Rights Act—the Voting Rights Act was the most successful in promoting equality. Its success depended largely on what the researchers called group-centered effects, which focus on systemic disadvantage rather than individual harm, discriminatory consequences rather than intent, and remedial group results rather than justice for individual victims or wrongdoers. Removing that statutory framework produces the opposite effect, Stryker says: highly effective, systematic suppression of minority votes.
In January the Democrats’ best efforts to date to repel the current onslaught of voting restrictions—the Freedom to Vote Act and the John R. Lewis Voting Rights Advancement Act—failed in the Senate. The former would have established nationwide standards for ballot access and hindered other forms of electoral prejudice such as gerrymandering. The latter would have reversed the 2013 Supreme Court ruling on preclearance as well as another one last year, which made it harder to challenge electoral rules in court on the grounds of discrimination. The bills contained the type of broad-based, preventive strategies that have been so effective at fostering racial equality at the very core of our democratic system. Ang and Stryker lamented their demise and conceded that it’s difficult not to despair in the face of intense political polarization.
For decades the Voting Rights Act enjoyed bipartisan support. No longer. Yet we must restore and expand federal oversight and jurisdiction of biased electoral rules. Until then, it is incumbent on social justice movements and everyone who cares about the most fundamental of democratic rights to keep the pressure on. As sociologist Aldon Morris wrote for us in February 2021, “when President Lyndon B. Johnson formally ended the Jim Crow era by signing the Civil Rights Act in 1964 and the Voting Rights Act in 1965, he did so because massive protests raging in the streets had forced it.”