I spend a lot of time worrying about democracy and the dual threats of voter suppression and election denialism. My law firm of 70-plus lawyers fight every day to protect and expand voting rights and ensure free and fair elections. Democracy Docket, which I started in 2020, has grown to be a critical source for accurate information, analysis and opinion about voting rights, elections and democracy in the courts.
Given the times we live in, it is natural to focus on the challenges facing democracy. In the last year, I have written about Republicans’ plans to undermine the 2024 election, the legal profession’s failure to weed out lawyers who use their bar licenses to subvert elections and the growing threat of Republican election vigilantism.
As a lawyer, I repeatedly call out and challenge new voter suppression and election subversion laws. My team takes on a network of well-funded conservative legal groups that are seeking to use the courts to undermine the right to vote. Like many pro-democracy advocates, I worry every time a new court decision is handed down. When we win a court case, the feeling of relief passes quickly. When we lose, the feeling of dread lingers for days or weeks, worrying about the very real impact these rulings will have on voters.
Less than one year from the next federal election, our democracy remains under constant pressure from right-wing forces that want it to fail. And there is no place where that pressure is more acute than in courts — where democracy is literally on the docket every day.
Yet, as I reflect on the year so far, there are reasons for hope for our democracy in 2024. There are reasons for those of us in the pro-democracy movement to give thanks. After years of attacks, the crown jewel of American democracy — Section 2 of the Voting Rights Act (VRA) — shined bright this year.
After the Supreme Court gutted Section 5 of the VRA in 2013, the importance of Section 2 — which prohibits any voting law, practice or map that results in the “denial or abridgement of the right of any citizen of the United States to vote on account of race or color” — has risen in the last 10 years, allowing voters and groups to challenge discriminatory maps and voting rules.
Before the term ended in June, we were collectively waiting for the Supreme Court to issue a decision in a key Voting Rights Act case, Allen v. Milligan. The case involved Alabama’s congressional map, which was enacted after the release of 2020 census data, and included one Black-opportunity district. Plaintiffs, including some represented by my firm, claimed that the VRA required a second district in which Black voters could elect their candidate of choice.
After a contentious hearing, a three-judge panel — with two judges appointed by former President Trump — held that a second Black-opportunity district was required. When the Supreme Court agreed to hear arguments in the case, many observers thought it would spell the end of Section 2, a key part of the VRA. Instead, the Supreme Court ultimately upheld the lower court’s decision and the longstanding interpretation of the VRA, agreeing that the state needed to draw a second Black-opportunity district. After weeks of defiance from Alabama Republicans, the state finally complied in October, enacting a map with two districts in which Black voters can elect candidates of their choice.
If Allen was the only VRA victory of the year, it would be a good year. But the impact of this landmark decision didn’t extend just to Alabama. Instead, we saw it reverberate in five other states across the South and beyond.
Following Allen, a series of other Section 2 claims moved rapidly through the courts. In Louisiana, a trial court similarly held that Louisiana’s congressional map violates the VRA because — like Alabama — Louisiana’s map contains only one Black-opportunity district. Recently, the conservative 5th U.S. Circuit Court of Appeals affirmed the trial court’s reasoning and gave the Legislature until Jan. 15, 2024 to draw a new map or else face a final trial on the existing map in February.
In Georgia, a federal court struck down that state’s congressional and state legislative maps for violating Section 2, ordering the state to enact new maps with additional majority-Black districts for the 2024 election. The state has a Dec. 15 deadline and Gov. Brian Kemp (R) has already scheduled a special legislative session for the end of this month.
We can give thanks to courts beyond the deep South as well for their vigilance in applying Section 2. In Washington State, a federal judge blocked the state’s legislative maps for violating the rights of Hispanic voters under Section 2. In North Dakota, another federal judge invalidated the state’s legislative maps for violating Section 2 and undermining the rights of Native American voters. And, in Galveston County, Texas, a court struck down the districts for the county’s legislative body, again ruling that they violate the prohibitions of Section 2.
As we approach this Thanksgiving, we are again worried about the continued vitality of this key VRA provision. A decision that came down this week from the 8th U.S. Circuit Court of Appeals held that only the Department of Justice (DOJ), and not private litigants like civil rights groups or voters, could bring claims under this provision. Preventing private plaintiffs from enforcing the VRA would cripple its utility. To put it in context, over the past 40 years, there have been at least 182 successful Section 2 cases — only 15 were brought solely by the DOJ. Presumably the U.S. Supreme Court will once again be asked to interpret and reaffirm this vital law.
But these are worries for another day. The importance of Thanksgiving is to give thanks for what we have and what we and our community have achieved. Thanks to the many hard-working lawyers, activists, judges and court personnel, this year we can celebrate the fact that Section 2 remains a vibrant part of the tapestry of American democracy.