Democracy should not be this hard. And the short fictional story above, based on many different public accounts, is not nearly as bad as some election accounts. You could even consider the account above a success: the individual was able to vote. Inherent barriers to the franchise exist, disproportionately affecting communities of color and less affluent areas. Election administration challenges, combined with malicious state laws, have placed the right to vote at risk.
The U.S. Supreme Court’s opinion in Shelby County v. Holder (2013), rendering Section 5 of the Voting Rights Acts essentially null by ruling the coverage formula in Section 4 was unconstitutional, opened the floodgates for states and localities to, putting it bluntly, make voting harder. Post-Shelby, polling places could be moved, laws could require a photo I.D., and voter registration efforts could be criminalized, all without having to seek preclearance with the U.S. Department of Justice. Black, Latino, Asian American, and Native American communities felt the brunt of these changes, as, in many of the cases, these voters were the target of the restrictions.
I, like many of you reading this magazine, have volunteered for “election protection” efforts on, and in the run-up to, Election Day. The questions we receive about what identification is required, why the voter was given a provisional ballot, and why the school on the corner is no longer the polling place are as heartbreaking as they are infuriating. Even when it is difficult to ascribe malintent, the simple fact that confusion is so prominent should not be a consistent part of our elections.
These election challenges were exacerbated during the COVID-19 pandemic. Fortunately, we saw many states modify their laws to allow for greater opportunities to vote by mail. While this was a net positive for many communities, voters located within urban areas or in Tribal communities were less able to take advantage of these benefits. Ballot collection, used primarily in these communities to offset challenges with remote distances or U.S. Postal Service, became a flashpoint and was severely restricted.
Some of these laws became an issue in the 2021 Supreme Court opinion of Brnovich v. Democratic National Committee. At issue were two Arizona rules—one prohibiting out-of-precinct voting and another criminalizing the collection of another’s ballot. These laws were challenged under Section 2 of the Voting Rights Act that they were discriminatory and adversely affected Black, Latino, and Native American voters. The Court once again took a sledgehammer to democracy, utilizing tortured logic and misreading past precedent and congressional intent, opining that the Arizona rules did not violate Section 2 and that Section 2 applies only in limited circumstances.
Shelby, combined with Brnovich, severely weakens the tools that can be used to fight voter suppression and laws that restrict the right to vote at a time when we need every tool we can find. The additional laws passed in Texas, Florida, and Georgia in 2021 were in response to the spewing of the “Big Lie” by former President Donald Trump and his defenders. Drawn from conspiracy theories, lies, and the myth of widespread voter fraud, Trump’s and others’ refusal to acknowledge and accept the results of the 2020 election is destructive to our democracy. The “Big Lie” not only led to the failed insurrection and coup, but it also lays the groundwork for extreme laws claiming to combat an issue that simply does not exist.
As we have seen during the hearings organized by the Select Committee to Investigate the January 6 Attack on the United States Capitol, communities of color—including voters, poll workers, and election officials of color—have had to deal with the consequence of these lies. Political violence, once thought to be a vestige of a dark time in our history, is now a regular threat. Voters and election officials now must expect aggressive poll watchers, seeking to challenge not just voters but the very legitimacy of elections.
It is no coincidence that the former president frequently questioned the validity of elections in Milwaukee, Philadelphia, and Atlanta, cities with a large Black population. Or claimed that “millions of illegals” voted. Or raised the specter of fear with respect to “ballot harvesting.” These allegations target voters of color and serve to rile up a base going into this upcoming election.
Voters not only will have to overcome the barriers to the franchise but also will face headwinds due to the various structural issues with representation. The ability to challenge districting plans, including those that stack, pack, or crack communities of color, has been limited. In 2019, the Court held in Rucho v. Common Cause that partisan gerrymandering claims were non-justiciable. This upcoming term, the Court will consider two additional districting-related cases with profound implications for our democracy.
First, Merrill v. Milligan, surrounding a Section 2 challenge to Alabama’s redistricting map containing only one Black-majority district, could further hamper the use of the Voting Rights Act and allow for wider use of racially discriminatory gerrymandering. Second, the Court’s opinion in Moore v. Harper, involving a North Carolina map and also the consideration of the “independent state legislature theory,” could send shock waves through our electoral system and allow for not only redistricting at will but also election subversion.
While the challenges seem insurmountable, Congress does have the power to fix what was shattered and prevent further harm. Its consideration of several voting and election-related bills, culminating in a vote on the omnibus compromise Freedom to Vote: John R. Lewis Act was stymied by opposition from congressional Republicans and the adherence to an arcane Senate Rule, despite a push to change that rule by Senate Democrats.
Ultimately, and somewhat ironically, the ability to fix our elections may depend on the results of our elections. Because, as our hero in the fictional story believed, “This election is too important.”
The opinions expressed here do not reflect the opinions of Steptoe & Johnson LLP or its clients.
