Casting Doubt Instead of Votes: The Dismantling of the Voting Rights Act

By Hannah Agarwal

Hannah Agarwal is a first-year student in the College of Arts and Sciences at the University of Pennsylvania. She plans to major in psychology and minor in American Public Policy.
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On October 4th, the Supreme Court once again heard arguments challenging the Voting Rights Act of 1965, which prohibits discriminatory voting practices [1]. Merrill v. Milligan is one of the latest cases to be brought before the conservative-leaning Supreme Court, but the Act’s power has diminished over the past decade as multiple sections have either been reinterpreted or rendered unconstitutional [1].

In Merrill v. Milligan and Merrill v. Caster, the Supreme Court discussed whether Alabama’s plan to redraw the congressional map violated Section 2 of the Voting Rights Act. Despite Alabama being 27% Black, African Americans only make up the majority in one out of seven districts, severely limiting their ability to elect their preferred candidates [2]. In the other six, the black population makes up a percentage too small to make a meaningful impact on election results, which opponents of the plan argue is a violation of the Voting Rights Act [3]. This prompted the lower courts to dismiss the proposed map for being racially discriminatory. Alabama then appealed to the Supreme Court to uphold it. If the Supreme Court rules that the map does not violate the law, then this will set precedent for states to enact potentially discriminatory voting practices and maps [2].

While the Court has ruled on over 50 cases since the Voting Rights Act was passed, decisions could primarily be considered “liberal” until the inception of the Roberts Court in 2005 [1]. In 2013, Shelby County v. Holder marked a dramatic shift in the strength of the law by ruling that Section 4 of the Act was unconstitutional [4].

Previously, Sections 4 and 5 of the Act worked together to identify and remedy voter discrimination in jurisdictions that historically used unequal election practices. Section 5 limited a district’s ability to change their voting laws unless approved by the U.S. District Court for the District of Columbia or the Attorney General, while Section 4 created the guidelines which would identify such districts [5].

Jurisdictions identified by Section 4 prevented citizens from registering and voting by use of a test or other device and had less than half of people eligible to vote either registered or voting in the November 1964 election [5]. These states were unable to change their election laws except in accordance with Section 5 of the Voting Rights Act.

In the past, Sections 4 and 5 has been applied to prevent racial discrimination in Alabama. In 2008, Ernest Montgomery, and African American city council member in Shelby County, Alabama, lost his race for reelection [6]. This was the result of a discriminatory redistricting plan that decreased the number of black voters in the district [6]. So, under Section 5 of the Voting Rights Act, Shelby County had to re-do the election with a more equitable congressional map.  

In 2012, Shelby County challenged Section 5 after a federal court ruled that it was constitutional [4]. Until Shelby, the county was subject to the preclearance requirement in Section 5 of the Voting Rights Act using the formula as defined in Section 4 [4]. However, the Supreme Court ruled that after 50 years, the formula no longer accurately represented the voting practices of the jurisdictions it impacted [7]. Instead, the Court said that the formula was “based on decades-old data and eradicated practices” such as literacy tests [7].

By finding that Section 4 was unconstitutional in Shelby, the Court effectively removed the preclearance requirement for states historically recognized as having discriminatory voting practices, including Alabama, Georgia, Louisiana, Mississippi, Virginia, South Carolina, and Alaska [5]. The removal of this requirement paves the way for almost 400 restrictive voting bills to be passed throughout the country since November 2020 [8]. According to Debo Adegbile, who represented Ernest Montgomery, the decision was “heartbreaking” and indicative that the federal government was taking a step back from protecting minority voting rights [6].
With the weakening of Section 4, Merrill v. Milligan and Merrill v. Caster are critical in ensuring the remaining power of the Voting Rights Act. Opponents of the redistricting plan argue that Alabama should create two majority-African American districts to provide the population with suitable representation [3]. However, Alabama contends that the policy is “race neutral” and therefore consistent with the Equal Protections clause of the 14th amendment [2].

Should the Supreme Court side with Alabama, discriminatory voting practices may become more common as states will have less power to prevent the passing of racially unjust laws [2].

As the 2022 midterm and 2024 presidential elections approach, fair voting procedures are even more relevant to maintain equitable representation across the United States. Regardless of the ultimate ruling, Merrill v. Milligan and Merrill v. Caster will have profound implications on the future of voter discrimination laws.

​References

[1] Thomson-DeVeaux, Amelia. "The Supreme Court Is on the Verge of Killing the Voting Rights Act." FiveThirtyEight. October 3, 2022. Accessed October 10, 2022. https://fivethirtyeight.com/features/supreme-court-kill-voting-rights-act/.
[2] Raymond, Andrew Chung and Nate. "U.S. Supreme Court Leans toward Alabama in Voting Rights Fight." Reuters. (October 6, 2022). Accessed October 10, 2022. https://www.reuters.com/legal/us-supreme-court-poised-hear-alabama-voting-rights-fight-2022-10-04/.    
[3] Totenberg, Nina. “Supreme Court conservatives may strike another blow to landmark Voting Rights Act.” NPR. 2022. https://www.npr.org/2022/10/04/1126804414/supreme-court-voting-rights-act.
[4] "Shelby County v. Holder." Oyez. Accessed October 10, 2022. https://www.oyez.org/cases/2012/12 96.
[5] "About Section 5 of the Voting Rights Act." (2022). Accessed October 10, 2022. https://www.justice.gov/crt/aboutsection5votingrightsact#:~:text=Section%205%20was%20designed%20to,applicable%20only%20to%20certain%20states.
[6] Brown, Alisa Chang and Ashley. "The Right to Vote: The Impact of Shelby County V. Holder on Voting Rights." NPR, 2021. https://www.npr.org/2021/07/13/1015754818/the-right-to-vote-the-impact-of-shelby-county-v-holder-on-voting-rights.
[7] Shelby County v. Holder, 570 U.S. 529 (2013).
[8] "Case: Shelby County, Alabama V. Holder." NAACP. Accessed October 10, 2022. https://www.naacpldf.org/case-issue/shelby-county-alabama-v-holder/.
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The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.