Carole Levine August 12, 2024
The upcoming November elections which were once shrouded in gloom, anger and fear with hardly any real enthusiasm for Presidential candidates on either side, now seem to be, at least for the Democrats, much happier places. I seem to be scrambling for new strategies but still project a “doom and gloom” future. I rarely see either Trump or JD Vance with a smile, nor do I see the stalwarts in that party racing to help with this campaign. For the Democrats, the newly announced Harris/Walz ticket seems to have supporters giddy and the Harris campaign, to this point, has generated newfound numbers of volunteers, donors and increased voter registration. All of this, however, leaves me with a nagging set of questions:
- Come November 5th, will people actually turn out and vote?
- Will all of the barriers that have been and are being put in place to obstruct voting be successful and will they keep people from the polls?
- Will all the votes that are cast be fairly counted?
As I ponder these questions, it is not lost on me that August 6th, was the anniversary of the passing of the Voting Rights Act (VRA) in 1965. I was in high school at the time and while I was interested in this historic piece of legislation, I was not the political activist I would become a few years later. It was an important piece of legislation, but it changed little in my life. I was fifteen, and the voting age, at that time, was 21 years old.
But the Voting Rights Act changed much in the lives of many,, especially people living Southern states and People of Color. The VRA was a centerpiece of the civil rights movement. It focused on those states and communities that where their was a living history of legal and extra-legal ways to keep Black citizens from voting. . The VRA required these communities to get “pre-clearance” from the federal government (via the Department of Justice and the US Attorney General), before they could make changes to their state’s voting laws or before they could re-draw their district maps. The issue of gerrymandering – drawing election district maps to favor a specific group, race, or political party – loomed large in the VRA’s efforts to ensure that there are no race-based restrictions on voting. From 1965 until 2013, much of the VRA held sway.
Writing about the VRA for the Brennan Center for Justice, Kareem Crayton traced its effectiveness in removing race-based restrictions on voting. Crayton states:
The law has been a hugely successful shield against schemes that limit or dilute the voting power of communities with a history of being marginalized. This protection has been especially helpful in processes like redistricting, which has led to the election of hundreds of federal, state, and local candidates of color in states with a history of discrimination.
In the years after the Voting Rights Act’s passage, the disparity in registration rates between white and black voters rates dropped from nearly 30 percentage points in the early 1960s to 8 percentage points just a decade later. Based on this success, the Voting Rights Act was reauthorized multiple times. In 2006, the reauthorization passed both chambers of Congress with wide bipartisan support, passing unanimously in the Senate.
What changed? In 2013 the Supreme Court began gutting of the Voting Rights Act. In their decision in the case of Shelby v Holder, they did away with the pre-clearance requirement for targeted districts. The 5 to 4 decision was far from unanimous. In her famous (and furious) dissent, Justice Ruth Bader Ginsburg stated: “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.” Indeed, with this decision, the door was opened for states to develop new voting “rights” laws that would restrict and limit People of Color’s ability to vote. And that trend has continued over the last 10 years.
In the absence of preclearance requirements (Section 5 of the Act), civil rights groups have needed to rely more on litigation under Section 2 of the Voting Rights Act to combat discrimination in the political system. Section 2 allows voters to seek judicial relief if they believe that a state or local government has denied or limited their voting rights on the basis of their race, color or membership in a language minority group. Issues such as voter ID requirements, how provisional ballots are counted, and rules surrounding mail-in voting all fall under Section 2. But lawsuits to undo these discriminatory rules are both costly and take years — during which elections continue. And in its 2021 ruling in Brnovich v. Democratic National Committee, the Supreme Court made it even harder to bring lawsuits under Section 2. This 6-3 decision narrowly reads the language of Section 2 of the VRA in a way that undermines its essential purpose to guarantee that members of every racial group have equal voting opportunities.The makeup of the Supreme Court swung even further to the right under the administration of Donald Trump who appointed three new Justices. All three brought notedly conservative backgrounds to the Court and seem less willing to find common ground with their more liberal colleagues. Even 5 to 4 decisions have become a rarity for the Supreme Court.
In 2023, however, the case of Allen v Milligan (decided 5 to 4), the Court seemed to be moving a little bit closer to the middle when it came to voting rights. The Justices) ruled that Alabama’s highly gerrymandered redistricting map was unconstitutional and that it violated Section 2 of the VRA. But this decision was just a single, short-lived exception to the Conservative’s game plan.In this past Supreme Court session (2024) the Court expanded the options for “constitutionally” acceptable gerrymandering. They found in the case of Alexander v The South Carolina Conference of the NAACP that if a state’s voting map was drawn on the basis of “partisan gerrymandering” as opposed to “racial gerrymandering”, it was considered constitutional. The result of this decision is just beginning to be felt. States where one party dominates their state legislatures, and their state supreme courts feel that they have been given the blessing of the Supreme Court to redistrict to their advantage as long as they couch it in partisan and not racial reasoning are now happening.,
There are no clear remedies for these changes… yet. Should Congress pass the John Lewis Voting Rights Advancement Act of 2023 there would be changes. The Act would establish new criteria for determining which states and political subdivisions must obtain preclearance before changes to voting practices may take effect. But today, the support for this effort is strictly along partisan lines. It is unlikely that it will gain traction before the 2024 election, and the outcome of this election will determine if it will move after January 2025.
Which brings me back to the three concerns I listed at the beginning of this article.
- Come November 5th, will people actually turn out and vote?
- Will all of the barriers that have been and are being put in place to obstruct voting be successful and will they keep people from the polls?
- Will all the votes that are cast be counted?
My concern for the counting of votes is not unfounded. We have numerous examples from states and municipalities of new laws that impact how votes can (or cannot) be counted. From voting at the wrong precinct, to a lack of a signature on the outside of a mail-in ballot, to the deadlines for postmarks and provisional ballots, to the locations (or lack of locations) for ballot drop boxes, can invalidate a vote in some jurisdictions. It is concerning how much thought and planning has gone into ways to divert and invalidate votes in elections.
The results of this election are critically important for future elections, and these are lingering questions. With states like Georgia, initiating a voter registration cancellation web portal where anyone can ask for the removal of voters from the voting polls. The state is seeing wide usage to “remove” voters of color or of a party affiliation that they dislike from the polls. This is a single example from just one state. And this is just one example. Almost every state, no matter what the partisan makeup, has initiated or is looking at ways to shore up their hold on their electorate to ensure their votes for the party in control. There is a lot at stake in the upcoming election.
So, I worry. And I find that, for me, the most important thing any citizen can do is vote in every election. Come November 5th, my vote will be counted. Will yours?
