It’s a shame Janai had to even write this oped, but that’s where some courts are today:
hutting voters out of the process of vindicating their rights has incalculable implications that could quickly compound. Over the last year alone, a majority of the seven states in which the 8th Circuit’s ruling applies have adopted new restrictive voting laws, while two have expanded voting access. Without a mechanism for individuals and non-governmental groups to hold power to account for racial discrimination that results from these laws, there could be devastating consequences for voters of color and the legitimacy of our democracy.
The 8th Circuit’s ruling also disturbingly suggests that decades of litigation by individuals and civil rights groups like the Legal Defense Fund, ranging from Texas’s discriminatory voter ID provision to Alabama’s egregious racial gerrymander, were somehow incorrect as a matter of law, despite the Supreme Court’s imprimatur. This prompts a critical question: What would our democracy look like were this aberrant interpretation of Section 2 in place since the Voting Rights Act’s passage?
It would mean that the Justice Department under 11 presidential administrations would’ve had to pick up this slack. According to its website, the Justice Department has filed a mere 44 cases raising claims under Section 2 since 1982, beginning in 1988 under President Ronald Reagan (1), followed by Presidents George Bush (1), Bill Clinton (16), George W. Bush (16), Barack Obama (5), Donald Trump (1) and Joe Biden (4).
Notably, in the decade since the Supreme Court disabled Section 5 — leaving Section 2 as one of the only viable tools under the Voting Rights Act — the department has filed only 10 such cases.
For our judicial system to be taken seriously in its commitment to free and fair elections, avenues of redress must remain open to the private individuals and organizations most directly affected by racial discrimination in voting. This egregious ruling that defies logic, legislative history, reason and the fundamental purpose of Section 2 must be swiftly reversed in the 8th Circuit and rejected by other federal courts.