Voting Rights Are on the Ballot in 2020

The Voting Rights Act is the most important piece of civil rights legislation that our country has ever enacted. For a long time, it had at least the outward support of Republicans and Democrats alike. But with a vote last week, Republican members of Congress have finally given up the pretense of supporting removing race-based obstacles to voting. This may seem unsurprising to many today, but even 15 years ago, the almost universal public renunciation of the Voting Rights Act by Republicans was unthinkable. And, as we head into 2020, it means that voting rights are on the ballot.

First passed in 1965, the Voting Rights Act included special provisions aimed at proactively ensuring that, in the places that repeatedly engaged in race-based voting discrimination, voters who had battled discrimination in the past would not again have to wait years and years (and election after election) to address ever-evolving new ways of voting discrimination. Congress first voted to extend those special provisions by five years in 1970, then seven years in 1975, 25 years in 1982 and another 25 in 2006.

Each of these votes was decidedly bipartisan. So much so, that when the Voting Rights Act came before the U.S. Supreme Court three years later in April of 2009, then-Justice Antonin Scalia skeptically asked during oral argument if anyone would “ever seriously expect Congress to vote against a re-extension of the Voting Rights Act.” He continued: “Do you really think that any incumbent would vote to do that? Twenty-five years from now? Fifty years from now? When?”

Scalia’s pointed questions were aimed at explaining why a Republican-controlled Congress passed the reauthorization of the Voting Rights Act in 2006 by a wide margin — 390–33 in the House and 98–0 in the Senate — and openly expressed what many in politics had long understood: despite their public support for the bill, many Republicans were privately opposed to it. Southern Republicans in particular believed that the South had been unfairly singled out for special federal oversight by the special provisions in Section 5 of the Act, requiring “preclearance” of potentially discriminatory election laws in those places that had a significant history of voting discrimination.

But as Scalia’s question makes clear, despite that private opposition, Republicans still believed that public opposition to minority voting rights was politically untenable. It was simply inconceivable to the justice that re-authorization of the Voting Rights Act would ever face serious opposition in Congress.

It turns out that the answer to Scalia’s question was 10 years, seven months and seven days from the day he asked it. History will mark Dec. 6, 2019 as the day that the Republican Party announced that it would no longer pretend to care about voting rights. On that day the House passed a new version of the Voting Rights Act aimed at restoring those provisions struck down by the Supreme Court in its 2013 decision in Shelby County v. Holder. While the bill gained unanimous support from Democrats, it attracted only one Republican vote.

The point of Scalia’s line of questioning was to show that Republicans supported the Voting Rights Act because voting against it would be shameful and embarrassing and have negative political consequences. In recent years, however, Republicans in Congress have developed a high tolerance for embarrassment and are seemingly without shame. And last week they were willing to do what Scalia thought unthinkable only a decade ago.

But there was another, more practical reason for their support of the 2006 law that does not exist today. After the 2000 census, Republicans realized that by cloaking their partisan redistricting schemes in the disingenuous rhetoric of protecting minority voting rights and supposed compliance with the Voting Rights Act itself, Republican state legislatures could pack minority voters into electoral districts to limit the number of Democratic districts while claiming to empower minority voting communities. In this way, Republicans piously disclaimed partisan motives and instead insisted that their redistricting maps were evidence of their firm commitment to the Voting Rights Act.

In 2016, the Supreme Court struck down the North Carolina congressional map as an unconstitutional racial gerrymander — and called out the Republican Legislature for its cynical ploy. Justice Elena Kagan warned legislators that using race as the predominant means to draw a district remains constitutionally suspect even if it is done “with the end goal of advancing their partisan interests — perhaps thinking that a proposed district is more ‘sellable’ as a race-based VRA compliance measure than as a political gerrymander and will accomplish much the same thing.”

Rather than draw a fair map in response, the North Carolina Legislature doubled down. Among the adopted criteria for a new map, the Legislature expressly included “Partisan Advantage” to ensure that the partisan makeup of the state’s congressional delegation is 10 Republicans and three Democrats. State Rep. David Lewis (R), the architect of the new map, proclaimed proudly that the new plan “would be a political gerrymander” and explained that the new plan would ensure the election of 10 Republicans and three Democrats “because I do not believe it’s possible to draw a map with 11 Republicans and 2 Democrats.”

Once the guise of concern for minority voters fell away, shame and embarrassment proved no barrier to Republicans’ extreme partisan gerrymandering. Earlier this year, a conservative Supreme Court majority approved this tactic and the resulting map, finding itself and the federal judiciary unable to formulate a “manageable standard” to determine when a partisan gerrymander is unconstitutional.

This brings us to last week’s vote in the U.S. House to pass a new Voting Rights Act. Unconstrained by the political pressures that Scalia had predicted would prevent “any incumbent” from voting against reauthorizing the Voting Rights Act and buoyed by the ability to engage in naked partisan gerrymandering, Republicans simply had no reason to vote for its restoration.

Opposing minority voting rights is not the exception in today’s Republican party, it is the rule. It is a feature of what makes the Republican party attractive to its supporters, not a flaw the party wants to fix in the future. That’s because Republicans know that the more they can drown out the voices of minority voters who are the backbone of the Democratic party, the more likely it is that Republicans will be elected.

It is time for supporters of minority voting rights to speak in similarly loud voices. In 2020, if the country elects a Democratic president, U.S. House and U.S. Senate, not to mention Democratic governors and majority-Democratic state legislatures, we will have new laws protecting the right to vote. If Republicans control any part of the legislative process, we won’t.

It is that simple.