Abolishing voter protections because they’ve successfully stopped discrimination, Supreme Court Justice Ruth Bader Ginsburg wrote in 2013, “is like throwing away your umbrella in a rainstorm because you are not getting wet.” Despite Ginsburg’s now-famous warning, her five conservative colleagues took a wrecking ball to a key provision of the Voting Rights Act—but insisted that the damage was limited. The court’s 5–4 decision in Shelby County v. Holdernullified preclearance, a requirement that historically racist states secure approval from the federal government before changing their election laws. Now, the courts are primed to deal another, possibly fatal, blow to the landmark civil rights law.
At the time, Chief Justice John Roberts said that “things have changed dramatically” in the South since the VRA’s passage in 1965, questioning the persistence of racial voter suppression. But the damage from Shelby County emerged immediately, and it has spiraled each year since. Jurisdictions previously covered by the now-defunct preclearance provision have closed at least 1,688 polling places and have purged voters at a rate 40 percent higher than that in other jurisdictions. Stringent, discriminatory voter ID laws have cropped up in these states too. It is no overstatement to say that the right to vote is under relentless assault in much of the United States today.
Shelby County did not uproot the VRA entirely. The court left in place Section 2, which prohibits any law that has the purpose or effect of abridging racial minorities’ right to vote. Section 2, the majority noted, “is not at issue in this case,” suggesting that it could still be used to protect the franchise.
Now, six years later, Section 2 is in serious trouble. Conservative advocates have long loathed this vital component of the VRA because it forbids any law that has the result of disproportionately burdening minority suffrage. Today, this “results test” is the most powerful and practical tool in the fight against racist voter suppression. Courts have used it in dozens of cases to protect minorities’ right to a free and equal vote. A majority of the current Supreme Court may also believe the results test is unconstitutional. And the nation’s most conservative federal court of appeals may be prepared to wound it, giving SCOTUS a chance to stick a knife into the heart of the VRA.