Introduction
The Voting Rights Act of 1965 was a major victory of the Civil Rights era. In the last decade, though the Voting Rights Act has been severely weakened. Now a new challenge has emerged. In October 2022, the Supreme Court will hear a case that could once again give states the unfettered ability to suppress the Black vote. This video will explore the upcoming Moore v Harper case and why it should concern the activist community.
A Brief History of African American Voting Rights
On February 3, 1869, the United States ratified the Fifteenth Amendment to the Constitution. The amendment provides that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude” and codified the right to vote for African Americans men. Black women gained the vote when the Nineteenth Amendment providing that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex” was ratified in 1920. Since then, however, individual states have adopted diabolical means to prevent Black Americans from exercising their right to vote.
Such measures have included the “Grandfather Clause,” a provision allowing those who had enjoyed the right to vote before 1867, or their lineal descendants, to be exempt from restrictive voting requirements, thus ensuring that only Black people would be subject to those restrictions. Other measures have included poll taxes, literacy tests, the “white primary, which refers to the first round of voting in an election when only white voters can vote for candidates of their choice, and gerrymandering, or the practice of manipulating electoral boundaries in order to favor one political party over another.
Through the Civil Rights Era in the 1960s, African Americans beat back these attempts to deny their right to vote using the courts and the U.S. Congress. In 1915, the Supreme Court struck down the grandfather clause in Guinn v. the United States. In 1944, the Supreme Court ruled that the practice of white primaries was unconstitutional based on the 14th Amendment’s Equal Protection Clause. Finally, the Voting Rights Act of 1965 removed poll taxes and literacy tests as barriers to Black voters.
The Voting Rights Act of 1965
In 1965 Congress enacted The Voting Rights Act (VRA) in response to widespread racial discrimination in voting practices that states and localities had established since the ratification of the Fifteenth Amendment. The VRA prohibits any state or locality from imposing barriers to voter registration or casting ballots based on race, color, language, religion, sex, or national origin.
In addition to requiring certain jurisdictions—mainly in the South—to get permission from federal officials before changing their election procedures, the act also required those jurisdictions to pre-clear any changes to their election laws with the Department of Justice.
The so-called “preclearance requirement,” known as Section 5, was intended to prevent states from discriminating against minority voters. Section 4(b) sets the formula for which jurisdictions will be subject to the Section 5 preclearance provision.
In 2013, the Shelby V Holder 2013 Supreme Court decision ruled that Section 4(b) is an unconstitutional violation of the 10th Amendment. In the court’s opinion, the coverage formula conflicts with the “equal sovereignty of the states” by using a formula that is “based on 40 year old facts having no logical relationship to the present day.” With no procedure for determining which jurisdictions will be subject to preclearance, the decision effectively struck down Section 5 of the VRA.
Since then, many states have moved forward with restrictive voting laws without going through the lengthy process of getting approval from the DOJ. Most notably, Texas passed a strict voter I.D. law only two hours after the court rendered its decision. The law requires voters to present a government-issued photo I.D. when casting a ballot. Opponents argue that this measure discriminates against low-income people and minorities because they are less likely than white voters to have such documentation.
Later in 2013, Alabama passed one of the country’s most restrictive voter I.D. laws, requiring voters to show a government-issued photo I.D. at polling places. Civil rights groups challenged the law by arguing that it would disproportionately affect African Americans, who are less likely than whites to possess driver’s licenses or other forms of identification.
The Moore V Harper Supreme Court Case: Why It Matters
In Moore v Harper, the North Carolina supreme court ruled that the state’s Republican-dominated legislature had violated the state constitution when it drew congressional districts that favored Republicans at the expense of Democrats. The case stemmed from an attempt by North Carolina state legislators to redraw the state’s congressional districts before the 2020 election. A three-judge panel of the Fourth Circuit Court of Appeals ruled that the Republican leaders did not follow constitutional requirements because they were motivated by partisan concerns instead of a desire to create fair districts.
In October, the Supreme court will hear arguments in the case of Moore v Harper, a North Carolina gerrymander case. The case involves gerrymandering, voter suppression, and a little-used legal theory called the “independent state legislature” doctrine. An independent state legislature regards state legislative assemblies as having their own Constitution and laws separate from the federal government.
The doctrine stems from a simplistic reading of the U.S. Constitution. Article 1 Section 4 states, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” The Supreme Court has interpreted this section to mean that the states have complete authority over the appointment of electors. While Congress has the power to regulate the time, place, and manner of appointing electors, the Supreme Court has held that state legislatures have exclusive authority over appointing presidential electors. This interpretation gave rise to the idea that there should be no interference between the executive and legislative branches in the selection of presidential electors. As a result, the doctrine holds that the president cannot interfere with the state legislature’s choice of electors.
Conservative Supreme Court justices Neil Gorsuch, Brett Kavanaugh, Clarence Thomas, and Samuel Alito have all endorsed versions of the legal theory in previous court opinions. Their support signals that they will vote in this case to overturn prior legal precedent, which considered such cases highly partisan and thus “unjusticeable” and prevented the country’s highest court from weighing in on partisan state issues including gerrymandered election maps. (Source: businessinsider.com)
Suppose the Supreme Court buys into this radical doctrine and North Carolina’s favor in its upcoming gerrymandering decision. In that case, it will reduce oversight on state legislatures and could affect the outcome of various statewide elections in 2024 and beyond.
This would mean that state legislatures — their own makeup the result of heavy gerrymandering — could contort congressional districts at will to ensure one party has the advantage, playing with how much every individual’s vote really counts. Other harms abound. (Source: washingtonpost.com)
Theoretically, States could even set rules to disregard the results of the popular vote and appoint slates of electors after losing a presidential contest allowing politicians to subvert democracy.
Conclusion: The Fall of the Voting Rights Act
In short, the Moore V Harper Supreme Court Case threatens to return the United States to the era before the Voting Rights Act of 1965 in which the states had unchecked ability to set their own voting rules to ensure an electorate of their choosing. Considering the current makeup of the United States Supreme Court, it seems likely that Black Americans will have to gear up for a renewed movement for Voting Rights. Please comment below on how you think we can best meet this challenge.
Works Cited
“Opinion | Independent state legislature theory could erode voting rights.” The Washington Post, 5 July 2022, https://www.washingtonpost.com/opinions/2022/07/05/supreme-court-independent-state-legislature-theory/. Accessed 17 July 2022.
Tangalakis, Katherine. “What Is Moore V. Harper: Supreme Court Case Could Roll Back Voting Rights.” Business Insider, 3 July 2022, https://www.businessinsider.com/what-is-moore-v-harper-supreme-court-case-voting-rights-2022-7. Accessed 17 July 2022.
