//  8/20/20  //  In-Depth Analysis

As currently written, Section 2 of the Voting Rights Act—a nationwide and permanent prohibition against racial discrimination in voting—applies solely to States and their political subdivisions. Despite being the primary protector of minority voting rights in the wake of Shelby County, Section 2 does not bind the federal government. Especially in light of President Trump’s recent attacks on mail-in voting and the United States Postal Service, Section 2 should be revised to prohibit racial discrimination in voting by the federal government.

Several States and private parties recently filed lawsuits against the Postal Service and the Trump Administration to protect the integrity of the upcoming election. Given the current state of the law, Section 2 is off the table. Indeed, the complaint filed by Washington omits a Section 2 claim. The point of this post, however, is not to wade into whether a claim against the Postal Service would prevail if Section 2 bound the federal government. Rather, my point here is to illustrate why the federal government should not be exempt from Section 2.

In many ways, the VRA’s application to States and localities—but not the federal government—is a hold-over from the 1960s and a reflection of our electoral system’s decentralization. During the civil rights era, the federal government was appropriately viewed as the guardian of civil and political rights against recalcitrant jurisdictions in the Jim Crow South. The U.S. Department of Justice administered Section 5’s preclearance regime, which drastically transformed the South. And for decades, Section 2 litigation was primarily concerned with combating gerrymandering, which is done by States and localities given their role in the redistricting process.

Today, States and localities are still principally in charge of running our nation’s elections. And the post-Shelby County wave of voter-suppression laws demonstrated the need for Section 2 in vote-denial cases, not just vote-dilution ones. But States’ rights are no longer the sole threat to voting rights.

The Trump administration has repeatedly taken steps to cast doubt on our democracy—oftentimes with racial undertones. As Rick Hasen has chronicled, the Kobach voter fraud commission utterly failed to uncover evidence of in-person voter fraud. The Commerce Department’s decision to add a citizenship question to the 2020 Census on the grounds that it was “necessary to enforce the Voting Rights Act” was so clearly pretextual that the Supreme Court remanded the case back to the agency. Just this summer, President Trump announced that he would seek to exclude undocumented immigrants from congressional reapportionment. And President Trump’s recent attempt to kneecap the Postal Service shows how the machinery of the federal government can be deployed to deny the right to vote. In the Trump administration, the imagination is the only limit on ways to violate the Constitution.

Amending the VRA to encompass the federal government would add a powerful tool against any future administration or Congress that engaged in racial discrimination in voting. Although the federal government is bound by the Fifteenth Amendment, that Amendment is currently construed by a plurality of the Supreme Court as proscribing only intentional denial of the right to vote. By contrast, Section 2 prohibits practices that “result[] in the denial or abridgement” of the right to vote on account of race, color, or language-minority status. In other words, Section 2 endorses a discriminatory effects standard that is far easier to prove than discriminatory intent. Judges, after all, are reluctant to ascribe the actions of politicians as racist, even when there is smoking gun evidence. Thus, revising Section 2 to bind the federal government would ensure that future voting rights suits against federal statutes and regulations would need to establish only discriminatory effects rather than discriminatory intent.

Voting rights are likely to be high on the agenda in a Biden administration. Last year, the Democratic-controlled House of Representatives passed the Voting Rights Advancement Act (VRAA), a bill that I’ve previously summarized here and here. More recently, the death of civil rights icon Congressman John Lewis has reignited calls to enact the VRAA, which was rechristened in his honor. If the VRAA is going to pass the next Congress and be signed into law, we should take this rare opportunity to expand Section 2’s proscriptions to the federal government.

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11/2/20  //  Commentary

I'm pretty nervous. But there’s also no reason to think that the rule of law has been entirely eroded in America in 2020. So far, the center has held.

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Will this be the last Versus Trump before Trump loses reelection? Who knows, but, on this week’s episode, Jason and Charlie discuss key theories that will shape which votes count. Listen now!

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Brianne J. Gorod

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