The Voting Rights Conundrum, Part I

Stephen Griffin

Although there may be a Senate debate, as a practical matter the effort to pass voting rights measures may be dead for now.  However, but the issues raised by the current House bill (originally two bills) will likely be with us for some time.  Regardless of what happens in the Senate, I see some problems with the way the public debate has been conducted, even among voting rights experts, and that’s my concern here.  I’ll start with Yuhal Levin’s op-ed in the New York Times, arguing that the concerns Democrats and progressives have about voting rights procedures are misplaced.  Levin points out that the process of voting, such as registration, has been generally made easier in recent years, certainly easier if our frame of reference extends back to the 1980s, before the adoption of “motor voter” legislation and early voting.  This is the perspective taken by Justice Alito’s majority opinion in Brnovich.  For his part, Levin sees the parties as focused unduly on measures to improve (or obstruct) voter turnout, which is highly unlikely to actually affect which party wins or loses.  I agree with him on this point.  As he portrays it, the parties are locked in an unproductive policy stalemate.

Unfortunately, this viewpoint leaves out one region and one group of surpassing importance to the Democratic party and, one hopes, to the nation as a whole – African Americans in the South.  Perhaps Levin is overlooking the question of race because he references the “Freedom to Vote Act”, rather than the John Lewis Voting Rights Advancement Act, the response to Shelby County and Brnovich which renews for a new era the Voting Rights Act of 1965 (VRA).  But, in fact, a number of elements in the two laws are linked in that many of the states that have enacted restrictive laws are in the South, such as Georgia, Texas, and Florida.  If Levin is suggesting that Democrats ignore the perspective of African Americans in the South, that is an obvious nonstarter.  Indeed, given the history represented by John Lewis, their perspective ought to be our perspective.

Misperceiving the relevance of race seems something of a theme in recent commentary on the proposed voting rights measures and the advocacy of the Biden administration.  Consider a recent Washington Post’s “Fact-Checker” column by Glenn Kessler.  The essential problem with the Post’s analysis is that it analyzes the administration’s statements as if the voting rights controversy began in the aftermath of the 2020 election.  But the legal reality the John Lewis Act is meant to address goes back to the aftermath of the 2013 Shelby County decision, nine years ago.  It is well documented that in the immediate aftermath of the decision, states like North Carolina and Texas passed laws that would have been subject to DOJ preclearance under the VRA and probably disapproved.  These laws were subject to litigation, like the McCrory case in North Carolina and Veasey v. Abbott in Texas in which multiple appellate courts found that state legislatures acted with a racially discriminatory purpose.  From the perspective of the advocates of the John Lewis Act, to whom President Biden was speaking in his Atlanta address, this history matters.

Moreover, the Post’s analysis ignores that one of the main purposes of the 1982 VRA amendments was to mandate that voting rights claims, either in terms of vote dilution or vote denial, be judged in light of the “totality of the circumstances” – that is, against the historical background which produced not only Jim Crow laws but the consistent efforts of southern whites to evade the effect of the VRA after 1965, something the Post never mentions.  Immense bodies of factual analysis gathered each time the VRA was reenacted and the lessons of decades of DOJ preclearance and litigation show the persistence of efforts by whites to structure the political system to systematically favor their interests.  By treating the voting rights controversy as if it originated with President Biden and the laws passed in 2021, the Post undercuts any meaningful assessment of what Biden is referring to in discussing the present legacy of Jim Crow.  This makes the Post’s descriptive analysis a cartoon of what has actually been occurring on the ground, especially in the South, post-Shelby County.

In addition, the Post’s analysis is not accurate on what the legal standard is to determine whether a voting rights law was passed with a racially discriminatory purpose.  It strongly implies that the test is purely subjective – that is, whether lawmakers “openly advertise” their intention to hinder access to the ballot for minorities.  Here we need to advert again to the 1982 VRA amendments, as well as constitutional doctrine, to understand what is going on with respect to the lawsuits filed after Shelby County, as well as the lawsuit filed by the DOJ in 2021 against Georgia.  Although the legal analysis here can be intricate, the basis for the 1982 amendments was the kind of “objective” test continually promoted by Justice White for the Supreme Court in voting rights decisions like White v. Regester and Rogers v. Lodge as well as the more consequential Washington v. Davis.  As noted above, an objective test places the emphasis on making circumstantial inferences from the relevant historical background.  Open admissions of intent are not necessary to satisfy either the constitutional test or under the 1982 amendments.  The Post, for example, notes that Georgia complains that the DOJ is not suing other states for similar laws.  But the Post fails to note the obvious – the reason the DOJ is suing Georgia rather than other states is because Georgia has a special history going back to Jim Crow in restricting voting rights for Blacks, the kind of history made relevant by the 1982 amendments.  That’s how the label “Jim Crow,” becomes relevant to voting rights, something the Post fails to say.

All that said, outside the context of race, voting rights advocates often fail to acknowledge a rather severe baseline problem with the kind of analysis they employ.  If State A makes casting a ballot easier (perhaps because of the pandemic) and then reneges and goes back to the original status quo, is there a violation of the Constitution?  Surely only if the Constitution requires making casting a ballot as easy as possible, a controversial proposition that is far from clear.  Voting rights advocates often argue as if the constitutional baseline were “as easy as possible,” but that requires an argument they do not often provide.  In any “fact checking” analysis, some allowances have to be made given such complexities.  But I think in this case, the Post’s analysis fell far short of adequacy.

 In a subsequent post, I hope to say something about the strategy people of good will in both parties should employ to avoid the worst in the next presidential election.