How an Even More Conservative Supreme Court Could Eviscerate Voting Rights for Black Americans

Last week, Barrett declined to express an opinion on the Court’s ruling in Shelby County, and would not confirm whether she agrees that the Constitution empowers Congress to protect the vote for all citizens.

When polls opened in Georgia last week, photos and videos of long lines quickly made the rounds on social media. Some voters were forced to wait several hours to cast their ballots on the first day of early voting for the 2020 general election. 

The lines were not an anomaly; Georgia has repeatedly experienced long lines in recent years. A 2018 study found that the state’s voting wait time in 2018 was 2.5 times the national average and that no other state had experienced a larger increase in wait times between 2014 and 2018. These lines are often most visible in communities with sizable Black populations like Fulton County, where Atlanta is based, and neighboring Cobb County. 

Research has found that voters in heavily Black communities are far more likely to experience long waits than white voters. Lawsuits filed against the Georgia secretary of state allege that during the 2020 primary election, voters in communities where more than 90% of active registered voters are people of color experienced an average minimum evening wait time of 51 minutes. In communities where white voters make up more than 90% of registered voters, the average was around six minutes. 

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So why have Georgia voters experienced such long lines in recent years? Part of the answer may have something to do with the US Supreme Court invalidating a key provision of the Voting Rights Act of 1965. The landmark legislation mandated the federal government oversee state election laws in nine states and dozens of counties across the country that had displayed a track record of discriminating against Black voters. 

Prior to the passage of the Voting Rights Act, the majority of Black people living in Southern states were not registered to vote. In March 1965, only 7% of Black residents in Mississippi were registered, compared to 70% of white residents. The law dramatically closed the racial gap in voter registration rates across the South, and by 1988, 74% of Black Mississippians were registered to vote, only slightly below the 81% mark for their white peers.

The law has been called the “single most effective piece of civil rights legislation” ever passed by Congress, but the conservative-leaning Supreme Court’s 2013 decision in Shelby County v. Holder found that federal oversight was no longer necessary in the nine, mostly Southern states, thanks to the progress that had been made in combating discriminatory voting laws. As a result, those states would no longer have to “preclear” changes to their voting laws with the federal government. 

In the years since, several states, including Georgia, have enacted barriers to voting. Now, with Judge Amy Coney Barrett all but certain to be confirmed to the Supreme Court early next week, voting rights advocates are worried about what an even more conservative majority would mean for the Voting Rights Act and protecting Black voters’ access to the ballot box. 

The Senate Judiciary Committee will meet Thursday to vote on recommending Barrett’s nomination to the full Senate.

What’s Happened Since the Voting Rights Act Was Gutted

In his 2013 opinion in Shelby County, Chief Justice John Roberts argued that “[t]he conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.”  Those conditions included racist voting laws like literacy tests and poll taxes that had for decades interfered with Black Americans’ ability to cast their ballots in the nine, predominantly Southern states. 

But by removing the preclearance mandate, Roberts reversed a key plank of the Voting Rights Act and once again opened the door for states to pass discriminatory laws.

While Roberts was convinced that conditions had changed, recently deceased Justice Ruth Bader Ginsburg understood what might happen if the Court eroded the protections of the Voting Rights Act. “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,” Ginsburg wrote in her dissent. 

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Her fears were quickly proven valid. In the seven years since the court’s decision, many of the states previously covered by federal oversight have made it substantially more difficult to vote. Between 2014 and 2018, Georgia closed 214 polling sites, according to a 2018 report from the The Leadership Conference on Civil & Human Rights. Arizona and Texas also dramatically reduced the number of polling sites, while North Carolina established voter ID laws and other restrictions that a federal appeals court said “targeted “African Americans with almost surgical precision.”

States previously covered by the Voting Rights Act also purged people from their voter rolls at much higher rates than non-covered states. Once again, Georgia led the way here, purging twice as many voters—1.5 million—between 2012 and 2016 as it did between 2008 and 2012, according to a report from the Brennan Center for Justice.

“The Court has worked to—at every turn over the last several years—chip away at our ability to participate in our Democracy, to chip away at our right to vote, and chip away against the protections afforded to us as a result of this country’s history of suppressing, denying, and placing both structural and violent barriers in our way,” Rashad Robinson, president of Color Of Change, a racial justice organization, told COURIER.

Mississippi, which has the highest percentage of Black residents of any state, hasn’t gone to the same lengths as some other states, but has passed a voter ID law and slashed the number of polling places. The state has also avoided taking steps to make voting more convenient, according to Rukia Lumumba, co-director of the Electoral Justice Project of the Movement for Black Lives.

“We’ve already seen attempts to prevent full access and full participation of the masses of people to engage in the voting process and the electoral process altogether in places like Mississippi,where we still haven’t expanded our [voter] registration to online registration, where we still haven’t moved to allow for early voting,” Lumumba said. “So I am concerned. That’s the bottom line.”

What We Know About Barrett’s Positions on Voting Rights

While Barrett herself has written little about voting rights, she was asked about her views on voting rights during her confirmation hearings last Tuesday. While answering questions from Minnesota Sen. Amy Klobuchar, Barrett declined to express an opinion on the Court’s ruling in Shelby County and would not confirm whether she agrees that the Constitution empowers Congress to protect the vote for all citizens. She also refused to say whether it was illegal under federal law to intimidate voters at the polls, drawing criticism from organizations 

Barrett has previously come under scrutiny for a 2019 dissent in which she concluded that the right to own a gun, which she classified as an “individual right,” should have more protection under the Constitution than the right to vote, which she conceived of as a “civic right” that historically belonged “only to virtuous citizens.”

“Inserting this analysis into modern voting rights [theory] would overthrow the Supreme Court’s twentieth-century precedent protecting the right to vote and potentially allow Congress or the states to deny people they regard as having “poor character” the right to cast a ballot,” the NAACP wrote in a letter to senators.

Barrett has also openly stated that former Justice Antonin Scalia—who viewed the Voting Rights Act as a “racial entitlement”—is her role model, raising fears that she could further erode the groundmark law. 

“If Justice Scalia is Judge Barrett’s role model, then the Senate should explore carefully whether she is prepared to restore Jim Crow laws that disenfranchised African Americans for decades,” the NAACP wrote.

The Path to Further Decimating Voting Rights Is Already in Play

Fears over further reversals of the Voting Rights Act don’t exist in a vacuum: the path to a further rollback of the law already exists. 

As Vox recently reported, the Court announced earlier this month it would consolidate two cases surrounding Arizona voting laws that disproportionately impact voters of color. One law requires voting officials to discard entire ballots cast by Arizonans who vote in the wrong precinct, while the other bans ballot collection, in which voters give their ballots to another person who then delivers that ballot to the election office. 

A federal appeals court struck down the laws, arguing they violate the Voting Rights Act’s so-called “results” test banning election laws that disproportionately disenfranchise voters of color. 

Should the conservative Supreme Court overturn the lower court’s ruling and uphold the laws, it could effectively gut what’s left of the Voting Rights Act, putting up more obstacles for Black voters to cast their ballots.

READ MORE: Judge Amy Coney Barrett Has Been ‘Stunningly Hostile’ to Civil Rights, Critics Say