If the Voting Rights Act Falls

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This right to vote is the basic right

without which all others are meaningless.

It gives people,

people as individuals,

control

over their own destinies.

When Lyndon Johnson signed the Voting Rights Act in 1965, he called it a triumph for freedom as huge as any victory won on any battlefield.

For decades, the Voting Rights Act was reshaped and expanded, mostly by Congress.

It became became a kind of intricate machine that allowed the federal government to step in whenever minorities were not fairly represented in any state.

Since the law passed, the number of non-white representatives in the House has gone up over tenfold, and the first black president was elected.

The act was effective, supported by both parties, and thriving.

Until it wasn't.

I'm Hannah Rosen.

This is Radio Atlantic.

On Wednesday, the Supreme Court heard arguments in Louisiana v.

Calais about the state's redistricting map.

A group of self-labeled non-African Americans are challenging a new district in Louisiana, claiming that it violates the Constitution.

Now, the court has already chipped away parts of the act in recent years.

This latest case involves Section 2.

the last pillar of the Voting Rights Act.

The key question of the case is, do the acts measures to fix racial discrimination actually violate the equal protection and voting rights enshrined in the 14th and 15th Amendments?

Does the crowning civil rights law of the 1960s violate the crowning civil rights laws of the 1860s?

Or more concretely, as one of my guests put it, If you know that racial discrimination has existed in maps, can you use race to fix that?

That is Stacey Abrams, a voting rights activist, lawyer, and two-time Democratic nominee for governor in Georgia.

We, of course, don't know how the court will come down, but for Abrams, it's easy to see what's at stake.

We will not have free and fair elections in this country going forward if they are permitted to strike down the Voting Rights Act.

Because what you are saying is that for the vast majority of people of color in this country, you will not be permitted to have access to a truly representative democracy.

We'll hear more from Abrams in the second half of the show.

But first, staff writer Van Newkirk, who's written about the Voting Rights Act, helps us think about the oral arguments before the Supreme Court this week and what we can and can't read from the justices.

Van, welcome to the show.

Thank you for having me.

Before we get to the case that the court just heard, can you just lay out what was the basic aim and promise of the Voting Rights Act?

So the VRA, it is 60 years old now

and was passed as a result of movement by African Americans in the South.

And for a hundred years prior to that, they lived under the regime we know as Jim Crow.

And in the Jim Crow South, you had a bunch of different mechanisms that stopped African Americans from voting.

You had poll taxes, you had literacy tests, you had grandfather clauses, and those were combined with other various forms of intimidation, of closed party primaries.

You had states that had majority black populations or counties that have majority black populations in the South and had for decades zero black registered voters.

So essentially you had a both one race rule and a one party rule throughout the South for about 100 years.

And the Voting Rights Act was designed to counter that.

It's a very intricate system, and it's one that was designed to meet the constitutional sort of requirements that you can't discriminate based on race.

And so what these southern states did was create a bunch of proxies for race to create a bunch of wink and nod things that happened at the registrar's office.

And in order to fight those type of things, you got to be as clever as that system.

So you have to create both a system that says you can't do the outright stuff and we are going to watch.

We're going to be actively intervening in their elections policy.

We're going to win.

We in that system.

That means the federal government, which is important to know.

Right.

Yeah.

Yeah.

Yeah.

So they created a list of districts that were the worst Jim Crow counties and states and said you can't pass any new election laws without clearing that with the Justice Department or the Supreme Court.

And in addition to that, the Voting Rights Act also had a bunch of mechanisms where people who were affected by any law that got through that net, they could challenge those laws, not just on the basis of somebody saying, I hate those black folks over there, but on the effect that those laws have on the voting population.

Right.

So it's not just intentional racism.

It's also a fact-based racism, they call it.

Like there are no black representatives here, so we have to do something about that.

Right.

Did it work?

Well, for

that's a question, isn't it?

I'd say it was a rather successful law when you compare it to the magnitude of what it was up against.

You had a part of this country that functionally had never had robust democracy, multiracial democracy.

And immediately, overnight, you see thousands of people who could not vote coming registered, getting involved in elections.

You don't have the election of Barack Obama in 2008 without the VRA.

You don't have the emergence of black senators, which we now kind of take for granted.

You know, we didn't have our first black senators in lots of states until the last 30, 40 years.

And so you don't have that.

You don't have what democracy looks like now without the VRA.

I think there was a lot of ground still left to go with it.

But as far as being, you know, I think clever enough, powerful enough, and had enough public will behind it,

it was a remarkable piece.

I keep using the past tense.

It is a remarkable piece of legislation.

So, and it wasn't like 1965, it passed, the system was set up, it's in place.

It's not like a piece of civil rights history, right?

Like it kept getting amended by Congress over the years and strengthened for the most part.

right.

You know, a lot of people think of a law as a thing that's just on paper, it makes some regulations.

The VRA is machinery.

It creates the necessity for a bunch of different pieces of the DLJ, for example.

They have to, they were supposed to go out and monitor elections in the South.

So it creates new duties for the federal government, new positions for the federal government to fill, and really kind of fills in the gaps of a lot of our democratic processes that were never quite spelled out.

So when it comes to how we deal with folks with disabilities, for example, a lot of that is wound up in the VRA.

When it comes to how we deal with people who don't speak English as a first language, that machinery comes from the VRA.

When it comes to how we administer elections on reservations, a lot of that is bound up in the VRA.

So it really does create in a very decentralized system, it creates a lot of the things that we're sort of, you know, we take for granted now.

So the act is evolving.

Congress is strengthening it over the decades.

But then in 2013, something shifts.

What happens?

In 2013, we have this case called Shelby County versus Holder.

When I said the VRA had that first part where you had a bunch of counties and districts and states that were not allowed to change their voting laws without having them cleared by the federal government, this county was challenging that concept known as pre-clearance.

And essentially, the Supreme Court, in a first, they agreed agreed with the county saying that

while it's still possible discrimination exists, Chief Justice Roberts issued a now pretty famous or infamous decision saying that the country had changed and that we had sort of moved past the point in time we were in in 1965 that necessitated that pre-clearance.

So essentially lets counties, districts, states that had been, you know, closely watched by the federal government.

Now,

following that decision in 2013, they can kind of do what they want until it's challenged in court.

So, the phrase most people like to use about what Shelby County versus Holder did to the VRA is that it defanged it.

It got rid of, I think, the first line of defense.

And what that did was create our current system, which is over the past 12 years,

you have to sue.

In order to fix a law that you think is discriminatory, it doesn't have automatic oversight.

You don't have to submit to the federal government.

You now

have to go to court.

And in many cases, you have to go to court after the law has already taken place and potentially done its discriminatory or disenfranchising effects.

This has created what a lot of people, I think, in the field, myself included, have said is an inherent, you know, we're heading towards a disaster with the VRA.

Every single case that comes now towards the court is a chance for the court to come back and rule the rest of the VRA null and void.

It's an unstable system without that federal oversight.

Essentially, every time we redistrict now, every time county wants to pass a new voting rights law, we go through the song and dance again and again.

We send it up to the Supreme Court and it rests on one person again to decide whether we are going to have a VRA or not.

All right, so that was Shelby.

As you know, since Shelby, the court has heard a number of voting rights cases.

Like most recently, there was Alan v.

Milligan, where a voter sued Alabama for redistricting the reduced the number of black voting districts.

And in that case, Roberts actually stood by Section 2 of the Voting Rights Act.

I think that was a 5-4 decision.

That was in 2023.

And then this week, they heard a new case.

We will hear argument first this morning in case 24-109, Louisiana versus Calais and the consolidated case.

In the Louisiana case, the state redistricted to satisfy the Voting Rights Act, add a second majority-minority district.

And then in response, a group of these self-identified non-African-American voters sued.

Van, you heard the oral arguments.

What did you take away from them?

So

the three justices everybody is watching are Kavanaugh and Barrett and Roberts.

And

I think most people's sort of simulations on how the Voting Rights Act might be saved involved Barrett and Roberts getting on board with the three liberal justices, either defending the

redistricting map in Louisiana outright or having a narrow overturning.

Barrett seemed pretty amenable to keeping the VRA around.

The

other wild card, Kavanaugh, seemed to be really caught up on this idea that, again, was advanced by Roberts in 2013, that the VRA and other race-based laws in this country have to have natural sunsetting elements to their enforcement and seemed to be implying in his questioning that that sunset might have come for Section 2 of the VRA.

The issue, as you know, is that this court's cases in a variety of contexts have said that race-based remedies are permissible for a period of time, sometimes for a long period of time, decades in some cases, but that they should not be

indefinite and should have a end point.

So really for me, it's up to Roberts.

After making the seminal decision in 2013, this is a legacy decision for him.

And the one substantive question I thought Roberts gave was one where he asked the plaintiffs to defend

or to talk about how this case fits with Milligan, the 2023 case.

But it was a case in which we were considering Alabama's particular challenge based on its,

what turned out to be an improper evidentiary showing.

That to me signals, and I may be just doing some guesstimating, but it does signal to me that he is perhaps looking for ways to

overturn Section 2

without conflicting with his own decision two years ago.

So make it fit into the precedent.

The logic in that question, potentially, we don't know, is he's trying to justify this decision as being consistent with prior decisions.

Right.

I will just say we're reading tea leaves here.

We don't know because he didn't say very much, as you said.

But Roberts has been writing and thinking about the VRA since he was a young lawyer.

What do we know about Roberts' history with the VRA, his intellectual position?

Well, we know for pretty much his entire legal career before he became Chief Justice, he was involved in the conservative effort that existed before 2013 to weaken.

the VRA, to come out against things like the requirements to assist people who don't speak English as a first language.

So he was a lawyer for many conservative efforts to piecemeal dismantle the VRA.

You know, I think he knows better than anybody probably that the VRA

cannot function.

It's kind of like a car, right?

The car has all these different moving pieces and a lot of them depend on other pieces to work.

And if you start dismantling that car, it's not going to work at 60%.

When you take out 40% of the parts, it's going to stop working.

And I think he knows knows that.

So as we're talking today, what do you think is the ultimate fate of the VRA?

Well, the ultimate fate, I think Section 2 is gone, whether it's today or next year.

Because the momentum is so strongly in this direction from Roberts' past thinking, and there's a majority that goes with him.

Section 2 has been a dead man walking for years.

And, you know, I think this is probably going to be it.

But

maybe it limps along another six, eight months.

Again, I said said this happens over and over again.

Eventually, we get another map, goes back to the court, and we're back at it again.

Thomas has been writing concurrences, again, since 2013, essentially saying that the VRA doesn't even cover gerrymandering.

So, you know,

we're there.

And we're sort of in a very, like I said, unstable state where the court is either going to have to decide

to find a way to put some of this machinery back in the car or to say it's total.

Hearing you say that, you say that casually, or we've been having a kind of legal conversation, but you started off by saying the VRA is what

cemented

functionally democracy as we know it now, like a multiracial democracy.

So like it's not a small obituary.

It's not.

I've been covering this thing as long as I've been here, all 10 years.

And, you know, obviously I'm black.

I'd like to vote.

I would like my children to be able to vote.

We live in Maryland, so maybe it's not that big of a deal for us, but I'm from North Carolina.

And, you know, I lived in a pre-clearance county.

So for me, this is a very real.

thing.

I like to tell people democracy is not as old as you believe it to be.

My great-grandmother from Mississippi, who I knew very well, she was a grandmother before she was able to vote.

So this is that recent.

You have people who

were among the very first cohort of folks allowed to vote under the VRA who are still working today.

It's that recent.

You know, we like to think of progress in America as this thing that just keeps building and building and building, but black history is not really like that.

And we've got to watch out always for the times when we go backwards.

What you will see over the next five to 10 years.

And I hope I'm wrong,

but I think you'll see a disengagement actually of the people who've been newly

re-disenfranchised, let's call it, from the process.

And that is what worries me.

That is, if you study how Jim Crow came to be,

once enough people get the message that they are not supposed to be voters, that they're not supposed to be citizens, a lot of people find it, frankly, easier to survive by just accepting that reality

and

trying to survive.

And I think that's what we might be looking at.

Which is you see lots of people, lots of young black folks, whereas I was 18, you know, Obama was right when I was a kid in college.

People are going to come of age in that system now where they're being told by their federal government that you are not a full member of this society.

And what does that do to the psyche?

I think it's something to watch.

Van, thank you for coming on the show and helping us mark this moment.

Thank you.

Okay, so the Shelby case eliminated Section 5 of the Voting Rights Act.

Calais may eliminate Section 2, all of which effectively defangs the act.

After the break, we hear from voting rights activist Stacey Abrams about what a world without the Voting Rights Act might look like.

How do the maps change?

How does Congress change?

How might life for a black person in the South change?

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Well, Stacey Abrams, welcome to the show.

Thank you for having me.

Absolutely.

So can you lay out what you see the court doing in this case and also what its impact could be?

They are trying to invert the intention of civil rights laws under this presumption that we are now post-racial.

This is a case that is arguing that

Section 2 of the Voting Rights Act, which is the last major safeguard that protects voters of color from racially discriminatory political maps, this Section 2 would be struck down.

What that would mean is that racially discriminatory maps could happen everywhere.

If you look at what just happened in Texas, what Texas did with their maps was intentionally target black and brown voters to ensure that Latino voters had a diminished representation, that black voters had even more of a diminished representation, and that their ability to in the future elect representatives that reflect their values would be almost impossible.

Because what this says is that not only can you use race to discriminate, you won't have a cause of action to bring before the courts to fix it.

If this goes through, This gutting of Section 2 would directly cost up to 30% of the Congressional Black Caucus membership and 11% of the Congressional Hispanic Caucus membership their seats.

And the reason this matters is that the way we get to pick our leaders, the people who are supposed to work for us, the people we pay taxes for, we presume that we will have the ability to participate in not only hiring them, but firing them.

And if we are not permitted full participation, then for a very, very strong portion of this country, being present here no longer means that your citizenship has its full power.

You said the gutting of Section 2.

That's the case the court is hearing now.

What are the different options?

What are the ways that this case could go?

So, here's the argument: they are deciding if considering race to address proven racial discrimination in political maps can itself be treated as discriminatory.

That's the question.

If you know that racial discrimination has existed in maps, can you use race to fix that?

And in this country, that has been the sole remedy that has proven to work.

The argument is that considering race should be unconstitutional on its face, which makes no sense.

But if they strike down Section 2, it would twist the 14th and 15th Amendments to essentially say that they are not designed to actually protect and safeguard against racially discriminatory redistricting.

This would essentially say you have a green light to do what you want.

Because we know politicians often target minority communities when redrawing political maps because they want to weaken the power of those votes.

If the court strikes down Section 2, the consequences go beyond Louisiana.

This means that from Texas to Florida to Georgia to North Carolina to Ohio to Wisconsin, two states that also at one point were covered by the Voting Rights Act, that all of those states will be able to pass unfettered law to restrict access to the voting rights.

I want to break down those consequences, because let's say the court does take the broadest possible interpretation, which is you can't use race to make up these districts.

First of all, where does that leave the Voting Rights Act as a whole?

It is,

for all intents and purposes, it's pretty much dead.

Section five essentially said, before you make changes that would have racial discriminatory impacts, you have to run it past the courts.

You have to get permission from the Department of Justice.

And if you gut Section 2 and you gut Section 5, for all intents and purposes, there is no longer a functioning Voting Rights Act in the United States.

The political organization you founded, Fair Fight Action, released the report saying Republicans could redrop to 19 House seats to favor their party.

How important do you think the case would be to the makeup of Congress?

Aaron Powell, it would transform Congress into a one-party rule because most of the people of color who are elected to Congress, they tend to right now vote and tend to run as Democrats.

And so we would basically become a one-party political system where millions of Americans are blocked from full representation simply because of who they are and where they live.

And to put it into really sharp context, 56% of black people live in the South.

The entire southern region

would basically start to lose their ability to elect representation.

I live in the state of Georgia.

The Voting Rights Act is what forced Georgia into a more competitive space.

And let's be clear, race is a proxy, but it is not the only way you win elections.

But it does send very clear signals.

And what we know is that this is a deeply cynical and intentionally harmful attempt to block voters from being able to pick electors who understand their story.

We would never in the Midwest do something that would preclude farmers from being able to vote for those involved in the agrarian economy.

And yet, we are saying that it is completely permissible.

to ignore a nation's behavior and say that we are willing to block from full representation entire swaths of community

because

we simply don't want to be held accountable for what has been done and what people are intending to do.

We will not have free and fair elections in this country going forward if they are permitted to strike down the Voting Rights Act.

Because what you are saying is that for the vast majority of people of color in this country, you will not be permitted to have access to a truly representative democracy.

If it does fail, let's say this passes and it does fail.

What other remedies are there?

Like what other avenues to fight for fair representation absent the Voting Rights Act?

In theory, the idea would be, well, you can just use local law to make it so.

But let's remember.

Where do people of color largely live?

Where have the results been largely guaranteed?

And those results have been predominantly in the South and in the West.

Well, in the South, there is no possibility of getting the kind of nonpartisan decision-making mechanisms that other states can use because most Southern states do not allow you to put things on the ballot.

Florida did for a while.

And when it started to work, when Amendment 4 passed and they were suddenly going to be compelled to re-enfranchise returning citizens, they changed the rules.

And so across the South, where most black and brown people live, across the South and the Southwest, there are no additional avenues.

Congress has been that avenue.

The federal government has been that avenue.

Because let's remember, basically, the management of elections by the Constitution is accorded to the states.

And the reason we needed the Voting Rights Act, the reason Section 5 was so vital, was that each state has the authority to manage its elections.

Therefore, you needed a federal law to compel states and local governments to actually do what was right by their people.

Jim Crow was never a federal law.

That was all state law.

And so I think it's really important for us to understand that the infrastructure of our voting rights accords to states that are hostile, a responsibility.

And we've had to rely on a federal government that was sympathetic to compel their behavior.

But if that federal government falls, if that sympathy dries up, then what we are left with is a hostility and an intentionality that is now backed by federal and primature.

And that is why this moment is so dangerous for so many of us.

But don't you think that's the likeliest possibility at this point?

Or a likely possibility?

Absolutely.

And that is why it's so critical that we raise our voices now.

When you think about how authoritarianism works, And this is why I want us to go beyond, for anyone who says, well, maybe we shouldn't use race.

Let's understand that race is, again, it's always been a proxy.

It's always been a methodology for power.

It's always been a point of entry for denying rights.

But it has never in this nation's history stopped there.

And when authoritarianism is already speeding through our courts and our Congress and our states, when people can be kidnapped off of the streets and denied due process, when the power of the state can be turned against its people, it never stops with the most vulnerable, but it always starts there.

And so we have to be loud about this moment because our silence is treated as consent.

Our silence is treated as permission.

And the problem is our memories are short.

We will forget in two years and four years what happened to make this so, but we will feel the consequences 10, 20, 30 years on.

You mean we'll feel the consequences in representation, like who the representatives are and what voting districts look like.

No, we will feel the consequences in the laws that are passed, in the way the laws are implemented, in the ways the laws are interpreted.

Because let's be clear, these lines are used to draw who sits at your city council meeting, who sits on your school board, who's making the decision about how much you pay for your electric bill as data centers eat more and more of our electricity.

These lines decide who gets full participation.

And so again, it may begin with the question of who goes to Congress, but it applies to every single job that is subject to voting lines and voting districts and all of the work they do.

Trevor Burrus, Jr.: You've been in this fight a long, long time.

Can you imagine a world, what would be the conditions where we wouldn't need a voting rights act?

Since that's something the court brings up all the time.

We wouldn't need a voting rights act if we had full participation and universal guarantees for basic voting rights in this country, which we do not have.

We have 50 different democracies operating in the continental United States, and that's not including the territories.

So every single state gets to decide how it wants to interpret its obligation.

If we had universal rules, if we had universal responsibility for nonpartisan gerrymandering, if we had universal access to voter registration, if we did not have arbitrary voter purging that almost unilaterally targets the most vulnerable communities, then yes, we would not need a voting rights act, but we've never done the work to make that possible.

We, in 1965, said, this is a good start, and then we stalled.

And since that time, there has been a constant and intentional erosion of what that moment achieved.

And now we're living the consequences of of that.

Well, Stacey Abrams, thank you so much for joining us today and explaining that.

Absolutely.

This episode of Radio Atlantic was produced by Kevin Townsend.

It was edited by Claudina Bade.

Erica Wong engineered and Rob Smirciak provided original music.

Sam Fentress fact-checked.

Claudina Bade is the executive producer of Atlantic Audio and Andrea Valdez is our managing editor.

Listeners, if you like what you hear on Radio Atlantic, you can support our work and the work of all Atlantic journalists when you subscribe to the Atlantic at theatlantic.com/slash listener.

I'm Hannah Rosen.

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