For more than 150 years, the history of Black people’s right to vote in the US has been marked by both progress and setbacks. One of its landmarks was the Voting Rights Act (VRA), signed into law by Lyndon B. Johnson in 1965, which resulted from a long-fought battle in the civil rights movement. The VRA banned discriminatory voting practices, like English literacy tests or poll taxes, and enforced specific restrictions on the election procedures of states with high levels of racial discrimination.
But the fight against voter suppression is far from over. Just a decade ago, one major section of the Voting Rights Act was deemed to be unconstitutional by the Supreme Court, and more cases with a potentially profound impact on voting rights are pending.
We invited Gregory T. Moore to share his views about historic battles and ongoing struggles for the basic principle of one person, one vote. Dedicated to breaking down barriers to full participation in American democracy for over 40 years, Moore is one of the leading voting rights advocates in the US. In recent years he has been active as President and CEO of the Promise of Democracy Foundation.
The interview was conducted by Jeremy Wang-Iverson of Vesto PR & Books.
Jeremy Wang-Iverson: Why was the Supreme Court’s Shelby County v. Holder decision in 2013 so disastrous for the seminal Voting Rights Act of 1965?
Gregory T. Moore: The Voting Rights Act of 1965 has been hailed as one of the greatest victories of the Civil Rights movement. Nearly a century after the 15th Amendment guaranteed Black men the right to vote, the law protected voters from racial discrimination at the polls. A key provision of the law is section 4, which established a formula identifying states and localities of the country where racial discrimination was more prevalent. Those regions then must undergo a review by the U.S. District Court in D.C. or the Attorney General, required by section 5, of any proposed changes to voting.
But in 2013, the Supreme Court ruled that Congress must come up with a new formula, essentially gutting the VRA. Within hours of the decision, then-Texas Attorney General Greg Abbott announced the state would proceed with a previously blocked voter identification law. In the wake of Shelby, Representative John Lewis himself declared that “The Supreme Court has stuck a dagger into the heart of the Voting Rights Act.”
“Although the court did not deny that voter discrimination still exists, it gutted the most powerful tool this nation has ever had to stop discriminatory voting practices from becoming law,” Lewis wrote in The Washington Post. “I disagree that because the incidence of voter discrimination is not as “pervasive, widespread or rampant” as it was in 1965 that the contemporary problems are not a valid basis for scrutiny. In a democracy, one act of voter discrimination should be too much.”
Almost 10 years later, Congress’ failure to pass a new formula has allowed Texas and other states to restrict access to voting. While Congress has shifted much of the blame onto the Supreme Court, lawmakers themselves have the power to repair the damage that the Shelby decision has inflicted upon voters.
“One of the most insidious threats to our enfranchisement has come from the Shelby decision. ”
Democrats have pointed to former President Donald Trump’s deliberate spread of misinformation and the January 6th insurrection attempt at the US Capitol as existential threats to our democracy, but one of the most insidious threats to our enfranchisement has come from the Shelby decision. Despite which party controls Congress, the House and the Senate have the responsibility to act now to reverse this decline in American democracy by passing the John Lewis Voting Rights Advancement Act.
JWI: What is the importance of Congress passing the John Lewis Voting Rights Advancement Act?
GTM: It is very important to pass the John Lewis Voting Rights Advancement Act because the Shelby decision swept away five decades of hard-fought gains by Congress and civil rights leaders to reduce barriers to voting. Texas was not the only state to pounce on a weakened federal law. North Carolina also introduced new voter suppression legislation immediately following the SCOTUS decision. State lawmakers had already started introducing bills meant to erode voting rights after the 2010 elections, but their efforts flourished after Shelby. By 2016, new voting restrictions cropped up in 14 states including Alabama, Arizona, Indiana, Kansas, Mississippi, Nebraska, New Hampshire, Ohio, Rhode Island, South Carolina, Tennessee, Texas, Virginia and Wisconsin, according to the Brennan Center for Justice.
The Supreme Court continued siding with state laws that diminished access to voting after Shelby. In 2018, the court upheld Ohio’s voter roll purging law, which allows the state to eliminate voters from registration rolls if they’re inactive. A 2019 analysis from the Brennan Center reported that counties with a history of voting discrimination purged voter rolls at a higher rate.
“As Lewis had predicted, gutting section 4 would hit minority voters hardest.”
As Lewis had predicted, gutting section 4 would hit minority voters hardest. A 2018 investigation by Vice News found that jurisdictions that had been subject to federal supervision under section 4 shut down nearly 20 percent more polling stations per capita than jurisdictions in the rest of the country. The same analysis found that a majority of the polling places had closed in areas with a majority minority population.
The proverbial leash has been taken off states as the Department of Justice and federal courts were no longer able to preview a flurry of new election procedures to ensure they did not violate the Voting Rights Act. Since the VRA was enacted, it had stopped thousands of state and local proposed regressive election-related bills from ever being enacted into law. Now that preemptive protection against voter dilution schemes has vanished.
States moved quickly to strip everyday Americans of their voting rights. Yet federal lawmakers have not reacted with the same level of speed that such a danger to our democracy requires.
JWI: Are you able to provide any insights into the cases the Supreme Court is hearing now?
GTM: There are a number of cases pending before the US Supreme Court that will have a profound impact on voting rights as we head into the 2024 election cycle. The Moore v Harper case in North Carolina is testing what has become known as the “Independent State Legislative Theory” described by Wikipedia as “The independent state legislature theory or independent state legislature doctrine (ISL) posits that the Constitution of the United States delegates authority to regulate federal elections within a state to that state’s elected lawmakers without any checks and balances from state courts, governors, or other bodies….”
This basically argues that a state legislature has complete dominion over state election laws—even superseding the input of a sitting governor or even a state supreme court or higher court action. It’s a very dangerous proposition that would undermine the very tenants of our three co-equal branches of government. In fact, it is the checks and balances of the legislative, executive and the judiciary branches that has allowed our democracy to flourish despite its failure to live up to those principles from the very beginning of our republic.
The U.S. Supreme Court is also reviewing another lower court case in Alabama, Merril v. Milligan, where the state of Alabama is once again challenging the long-standing clause of the VRA going back to 1982, that minority -majority districts are constitutional. According to the Lawyers Committee for Civil Rights Under Law, a unanimous three-judge federal court panel ruled that Alabama’s Congressional redistricting map violated Section 2 of the VRA because it failed to create a Majority -Minority district as a remedy to racial discrimination. If the Supreme Court adopts Alabama’s argument and overturns its newly drawn district, it could make future enforcement of remedially drawn race-based redistricting cases under Section 2 of the VRA nearly impossible to uphold.
“These two rulings could erase over three decades of forward progress on expanding access to the ballot.”
These two rulings that will be decided in the Supreme Court’s current term would greatly undermine one of the last remaining tools that the VRA provides voting rights advocates. It could erase over three decades of forward progress on expanding access to the ballot. If the ultra-conservative U.S. Supreme Court were to side with either of these two cases, it would lead to the further erosion of the VRA and could even further dismantle the very fragile representative democracy we have been struggling to uphold during these most recent years.
JWI: As you write in your book Beyond the Voting Rights Act, legislation in support of voting rights previously received bipartisan support, as the VRA was reauthorized in 1975, 1982, 1992 and 2006. How has the partisan political dysfunction in American politics prevented further progress here – are you able to pinpoint when the shift occurred?
Yes, this is one of the most important challenges we are currently facing that is covered in the book. The most noticeable political shift really began after the passage of the Reauthorization of the Voting Rights Act in 2006, and the historic election of Barack Obama as the first African American President in 2008. Beginning shortly after the midterm elections in 2010, Republicans at the Congressional and legislative level began dismantling many of the election reforms that had been instituted in several states over the years from the early 2000s until 2010. They included the enactment of the Help America Vote Act at the federal level; and at the state level: expanded early voting days, no-fault absentee voting, the expansion of mail in ballots, and even same day registration. Many of these Democratic party led reforms, although passed on a bipartisan basis in most cases were staunchly opposed by hard right conservative Republicans at the state level.
The Shelby Decision added a dangerous fuel to the fire and helped accelerate the rollbacks of these new laws at the state level. Most importantly, it also polarized the issue by pitting more moderate Republicans against Democratic allies who saw the court ruling as a rebuke to the long standing bi-partisan nature of the debate. Earlier efforts in 2014 and 2015 to pass a bi-partisan federal VRAA bill was interceded by the introduction of Donald Trump’s candidacy and his brand of racially divisive hyper-partisanship that was injected into the national political debate.
National Democratic leaders, for their part moved toward a stronger more partisan appeal to voting rights than was the case in past years. They painted Republicans as obstacles to voting rights. It was a rallying cry that help mobilize the Democratic base. But it was at the cost of the few moderates who had joined in past years who were pretty much left by the side of the road as we entered into the contentious 2016 and 2018 election cycles. By the 2020 elections the deep partisan divide in the country and on this issue had grown even deeper. Election deniers who along with Donald Trump had refused to accept the results of the 2020 elections had grown into a powerful force by the 2022 midterm elections.
Despite the appalling dysfunctional beginnings and continued disarray of the newly elected Republican Congressional Leadership, Democratic and Republican members of Congress still have the obligation to find a way to work together to restore the VRA to its full strength to ensure all Americans have the right to vote.
“The greatest impediment to restoring the VRA is the hyper partisanship that has stymied nearly every piece of voting rights legislation at the federal level.”
With another pivotal presidential election season in 2024 on the horizon, Congress must look past its partisan self-interest and act now to help stabilize state voting laws before this erosion of our democracy spreads even further. A fully restored Voting Rights Act would end most of the efforts now underway in states to undermine the proper administration of elections.
The passage of the John Lewis Voting Rights Advancement Act is not the only action Congress can take now to help save our Democracy during this time of crisis. There is also the Freedom to Vote Act which will address many of the issues related to ending the overwhelming influence of dark money in American Politics. Thankfully, in the closing days of the Democratic controlled Congress, with support from scores of reasonable Republican lawmakers in the U.S. House and Senate, Congress passed the Electoral Count Reform Act on a bipartisan basis as part of the Omnibus spending package signed into law by President Biden. This act, while not a panacea, will help remedy the confusing procedures related to the official counting of electoral votes that spurred thousands of Trump supporters to storm the Capitol on January 6, 2021.
Congress succeeded with previous support of the VRA in a political climate that could not be more different than todays. The greatest impediment to restoring the VRA now is the hyper partisanship that has stymied nearly every piece of voting rights legislation at the federal level. The John Lewis VRAA, like the Electoral Count Act cannot succeed without the support of both parties. We must remind lawmakers of their duty to their country above party and how allowing the disenfranchisement of millions of Americans can lead to a fate worse than what we witnessed on January 6.
JWI: There are many Republican members of Congress who have stated they will not accept the results on Election Day – how is this a voting rights issue, first and foremost?
GTM: This is a voting rights issue because a functioning democracy requires the acceptance of its citizens of the election results of a free and fair election. People have the right to believe whatever they want about an election and their desire for one candidate over another. But they do not have the right to undermine our democracy by refusing to abide by the results or to the laws that are enacted by those who have been duly elected. They have no right or credibility when they say, “we will accept the results of the election—but only if my candidate wins.” Such actions have no place in the United States or any other functioning Democracy.
“We must never give up on the need to pass election laws on a bi-partisan basis that will expand our democracy and not undermine it. ”
I as well as many other advocates have opposed election interference or voter dilution tactics that have been carried out over the years by purveyors of disinformation or those who have overtly erected barriers to voting. But we have always fought within the confines of the law, and in the end whether it was a presidential candidate who lost the popular vote, or one who was elected by razor thin margins, we have accepted the results of the election at the end of the day and moved our protests onto the legislative battles that continue. This is how a real democracy functions and why we must never give up on the need to pass election laws on a bi-partisan basis that will expand our democracy and not undermine it.
JWI: Can you tell us about some of the grassroots efforts today that are resisting the efforts to restrict voting rights and disenfranchisement of millions of Americans?
I can’t think of a better example than what is happening now in the state of Ohio where I am devoting much of my current time and attention. the voters of Ohio will soon face a new wave of restrictive voter suppression bills and constitutional amendments introduced by the Republican controlled Ohio Assembly that voting advocates claim will dilute the voting strength of all Ohio voters.
A bill HB 458 passed late last year during the lame duck session by the Ohio Legislature that reduces early voting, restricts mail in balloting and imposes strict ID requirements on Ohio Voters according to the Ohio Voter Rights Coalition. The League of Women Voters, the Ohio NAACP and other advocates have argued that HB 458 will make it harder for African Americans, young people, the elderly and the disabled to cast a vote. A study by the Ohio Legal Aid Society has estimated that this one ID requirement alone could deny over 1 million voters their right to vote in a state of only 11.7 million citizens.
The newly seated Republican controlled, and gerrymandered Ohio legislature is also considering legislation that will make it even harder for voters to amend the Ohio constitution or repeal their regressive anti-voter and anti-worker laws through the referendum process.
On this past January 16th Martin Luther King, Jr. Holiday in 2023, the Promise of Democracy Foundation joined with Ohio voter advocates vowing to continue to live up to the hopes and dream of Martin Luther King, by calling on the hyper-partisan Ohio Legislature to halt any further legislative initiatives that restrict Ohioans of their voting rights and their freedom to vote.
Learn more in this related title from De Gruyter
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