The nation’s primary tool for protecting the right to vote is in mortal danger, threatened on multiple fronts by the Supreme Court and lower-ranking federal judges, academics and civil rights advocates.

The latest blow to the landmark Voting Rights Act of 1965 came this week in Arkansas, where a federal judge appointed by former President Donald Trump dismissed a case over new state cards. The NAACP and the American Civil Liberties Union argued that the cards diluted the power of black voters. But the judge said he found no way for outside lawyers to proceed.

“Only the Attorney General of the United States can bring a case like this,” Judge Lee Rudofsky wrote.

The ACLU said the decision flouts decades of precedent and vowed to appeal.

“This decision was so sweeping that there was no choice but to appeal,” said Sophia Lin Lakin, deputy director of the ACLU’s Voting Rights Project. “Individuals have brought actions under Section 2 of the Voting Rights Act to protect their right to vote for generations.”

Arkansas’ decision follows Supreme Court Justice Neil Gorsuch’s comments just seven months ago in a case unrelated to the scope of the Voting Rights Act, where he expressed doubts about the rights deprived of continuing.

“They raise statutory and constitutional issues for the Court with the legitimate belief that the Court will welcome narrow interpretation and the possibility of further narrowing the law,” said Guy-Uriel Charles, professor of election law at Harvard Law School. .

The conservative-majority Supreme Court rejected reviews of ballot changes and made it harder to prosecute racial discrimination

The Arkansas case is the latest in a string of defeats for civil rights activists, as conservatives judges are slowly dismantling key provisions of the law.

“The reality is that we’re in a period right now where things are changing; there’s a new majority on the Supreme Court and the defendants are throwing things out there to see what sticks,” said Deuel Ross, senior counsel at the NAACP. Legal Defense Fund, on a recent Election Law blog podcast.

More than eight years ago, a narrowly divided Supreme Court gutted the most powerful part of the Voting Rights Act, known as Section 5, by removing the Justice Department’s power to approve at prior to ballot changes in places with a history of discrimination. The ruling has put government lawyers in a position of constantly catching up on a series of changes, large and small, in most southern states.

Chief Justice John Roberts wrote that the law imposed “extraordinary measures” to combat racial discrimination. But, he said, circumstances have changed in recent decades, citing rising voter turnout among black voters.

“Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to address this issue reflects current conditions,” Roberts wrote, noting that the he permanent prohibition of racial discrimination still exists in Section 2 of the Act.

Then, in July 2021, the High Court made it harder for people to sue under Section 2, which prohibits states from passing laws that result in “voter denial or restriction” because of race or color”, in requiring complainants to show that they have taken on a significant burden or faced other obstacles.

Charles, of Harvard Law School, said the ruling is a clear signal of how the Supreme Court will consider future suffrage challenges.

Next step: electoral maps that could disadvantage black voters

The court has already agreed to hear another case in the next term regarding the scope of Section 2 and new maps in Alabama. As a preliminary, judges earlier this month stayed a lower court ruling that the cards disadvantaged black voters in Alabama. Roberts and three liberal justices dissented.

“[I]It does a disservice to black people in Alabam who, under this precedent, have had their voting power diminished – in violation of a law this Court once knew to buttress all of American democracy,” the dissenting judge wrote. Elena Kagan.

Robert Driscoll, who served in the Justice Department’s civil rights division under former President George W. Bush, a Republican, said it was far too early to sound the death knell for the Human Rights Act. voting and that racially discriminatory voting practices, whether intentional or not, are always illegal.

The real risk is that political parties will weaken confidence in elections in general as they “energize their militant bases with hyperbolic references to the realities of voting,” Driscoll said.

“Voter turnout is higher than it has ever been in this country and it’s easier than ever to vote, as Democratic activists complain of ‘voter suppression,'” he said. declared. “At the same time, it’s harder to cheat in an election than ever, and Republicans are complaining about voter fraud.”

Harvard’s Charles, however, said an icy wind was blowing from the federal courts.

“I would be very surprised if the Court did not interpret the law in such a way as to deprive the states of the power to delineate majority-minority districts under the law, except in cases where the states have engaged in manifestly racial discrimination clear. ,” he said.