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How the Voting Rights Act, recently challenged, has long been under attack

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The Voting Rights Act, a landmark law that for decades has protected Black Americans from attempts to erode their political power, faced one of its most significant challenges this week when a federal appeals court struck down a key part of the legislation.

But Monday’s ruling, which would bar private citizens and civil rights groups from suing under a key provision of the law called Section 2, is just one of dozens of threats the law has faced : The Voting Rights Act has been under sustained legal and political attack since the day Lyndon B. Johnson signed it in 1965.

Beyond the country’s polarized racial politics, much of the reason the law has been such a magnet for legal challenges has to do with the nature of the American electoral system. With both parties pushing for the tightest edges, changes to voting rules and the playing field of elections often end up in court.

“Because the law affects the jobs of real politicians, it’s no surprise that it ends up in the crosshairs of partisans,” said Nathaniel Persily, a law professor at Stanford Law School. “And the number of election disputes themselves has increased significantly over the past two decades, so we should not be surprised if the number of VRA disputes and challenges against the VRA have also increased over that period.”

The ability of private citizens to mount legal challenges under Section 2 of the law has led to some of the biggest victories for voting rights advocates in recent decades. And they keep trying to enforce the law: on Monday Black voters in North Carolina have filed a lawsuit challenging new state legislative maps as a racial gerrymander, in violation of Section 2.

It is almost certain that Monday’s ruling will be appealed to the Supreme Court, where many legal challenges to the Voting Rights Act have emerged. Here are some of the most important.

A central part of the original Voting Rights Act was the “preclearance” provision in Section 5, which required states with a history of racial discrimination at the ballot box to obtain approval from the Justice Department before changing their voting laws.

Almost immediately after the law was signed in 1965, South Carolina Attorney General Daniel R. McLeod filed a direct complaint to the Supreme Court. One of his main arguments was that the provision trampled on states’ rights and created an unequal voting system among states across the country.

The court, in an 8-to-1 ruling by Chief Justice Earl Warren, rejected these arguments, holding that the Fifteenth Amendment to the Constitution “authorizes state legislatures to carry out by ‘appropriate’ measures the Constitution’s prohibition on racial discrimination in voting . .”

In 1960, New Orleans drew its district maps to divide black voters in a way that prevented a black representative from being elected to the seven-member city council for a decade.

When the city redrew its maps in 1970, with the Voting Rights Act in effect, it proposed one district with a majority of black voters and retained two with predominantly black populations. The city also retained two major districts.

Under Section 5 of the Voting Rights Act, New Orleans was required to seek approval from the Department of Justice and the United States District Court for the District of Columbia. The plan was rejected because it would undermine the rights of black voters.

An appeal was taken to the Supreme Court, which devised a test to clarify the scope of Article 5 claims. The court found that the VRA prohibited voting changes that would result in a “backsliding” or setback in the rights of a minority group. The justices read that the law does not necessarily guarantee representation for people of color, but instead prevents their rights from reverting to a previous state.

This meant that New Orleans could keep its map with a single district where a black representative could be elected, and other places could meet a lower threshold to guarantee minority representation.

After the 1990 census, North Carolina was forced to redraw a map to include a new district with a majority of black voters; it snaked through the state from north to south, cutting through several counties in a strange shape. Ruth Shaw, a white voter in North Carolina, filed a lawsuit arguing that the new map violated the Equal Protection Clause of the Fourteenth Amendment, which ultimately ended up in the Supreme Court.

In a 5-4 decision, the court ruled in favor of Ms. Shaw, stating that “the interest of a covered jurisdiction in creating majority-minority districts to satisfy the non-retrogression rule under 5 of the Voting Rights Act no it is carte blanche to engage in racist gerrymandering.”

Justice Sandra Day O’Connor, who wrote the majority opinion, explained this further.

“A redistricting scheme that includes in one district individuals belonging to the same race, but otherwise widely separated by geographic and political boundaries, and who may have little in common except the color of their skin, bears an uneasy resemblance to political apartheid,” she wrote.

The ruling effectively meant that race alone could not be the basis for changing district lines, once again limiting the reach of the Voting Rights Act in establishing more districts with a majority of black voters or other people of color.

This case stemmed from the Justice Department’s rejection of a map drawn up by the Georgian legislature as retrogressive under Section 5 of the Voting Rights Act, which led to a new appeal to the Supreme Court.

In another 5-to-4 decision, Justice O’Connor wrote an opinion that would significantly change the initial decline standard established in Beer v. United States.

“Section 5 allows states to risk having fewer minority representatives in order to achieve greater overall representation of a minority group by increasing the number of representatives sympathetic to the interests of minority voters,” Judge O’Connor wrote.

A new test assessing the ‘whole of circumstances’ was more appropriate, the court held, further limiting the scope of Section 5.

Previous decisions such as Shaw v. Reno and Georgia v. Ashcroft limited the scope of Section 5 but left it intact. Subsequently, challenges to the constitutionality of the section began to appear in the Supreme Court. In 2009, the judges rejected such a challenge.

But in 2013, the court dealt a devastating blow to the core of the Voting Rights Act.

In a 5-to-4 ruling along ideological lines in Shelby County v. Holder, the court ruled that states with a history of racial discrimination in voting practices, especially in the South, could change their election laws without prior federal approval.

“Our country has changed,” Chief Justice John G. Roberts Jr. wrote. for the majority. “While any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to address that problem is appropriate to current circumstances.”

The Shelby County decision, as well as a 2008 ruling upholding photo ID, helped usher in a wave of voting restrictions from Republican-led state lawmakers.

Under Article 2, the Democratic National Committee challenged two such laws in Arizona, one regarding who could collect and deliver absentee ballots and another that required election officials to throw out ballots cast in an incorrect precinct.

In the past, most legal challenges to voting laws were brought under Section 5. But after the Shelby Following this decision, some voting rights advocates turned to Section 2, a crucial part of the law that bans elections or voting practices that discriminate against Americans based on race.

However, the court ruled in a 6-to-3 opinion in 2021 that Section 2 could only be used when voting laws or policies imposed substantial and disproportionate burdens on minority voters, effectively blocking their ability to vote.

“If a state provides multiple ways to vote,” Justice Samuel A. Alito Jr. wrote. for the majority, “any burden imposed on voters who choose one of the available options cannot be evaluated without also taking into account the other resources available.”

More cases seeking to weaken the Voting Rights Act are likely to reach the Supreme Court — a reflection of how protracted the challenges to the law have been.

“If you compare it to some of the foundational civil rights laws of the 1960s — think of the Civil Rights Act of 1964 or the Fair Housing Act of 1968 — there have certainly been challenges to those statutes,” said Jon Greenbaum, the lead attorney for the nonpartisan Bar Association for Civil Rights under the Law and a former attorney for the Department of Justice. “But not like this.”

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