OPINION: Voting rights are dying by a thousand cuts

If you want to understand what’s happened to voting rights in the U.S. over the past decade, just take a look at the recent ruling by the U.S. Court of Appeals for the 5th Circuit. That ultraconservative court took a substantial bite out of voting rights last week when it reversed its own precedent to hold that multiple groups, like Black voters and Hispanic voters, can’t team up to argue that a state has diluted their votes.

The holding is legally wrong, yet the Supreme Court could conceivably uphold it, because the decision reflects a long-term conservative strategy: undermining voting rights law one step at a time in relatively low-profile cases rather than through sweeping decisions that draw a public outcry.

To understand the 5th Circuit’s decision, and where it falls in the conservative crusade to undermine the Voting Rights Act of 1965, you have to go back to 2013, when the Supreme Court decided a case called Shelby County v. Holder. That decision overturned one of the key elements of the Voting Rights Act, namely the requirement that states with a history of racial discrimination in voting must get newly designed districts pre-cleared by the Department of Justice, subject to expedited judicial review.

Critics of the decision, myself included, treated it as a landmark conservative holding. It was as radical as 2022′s Bruen decision on gun laws, or the same year’s Dobbs decision overturning Roe v. Wade. (To give you a sense, the headline of my column at the time was, “The Civil-Rights Era Ended Today.”)

Yet the broader public, even the liberal public, didn’t react to the Shelby County case in the way it has to more recent decisions like Dobbs and Bruen. Maybe the reason is that voting rights law is complex, so that understanding and explaining pre-clearance is tricky. Or maybe white liberals weren’t sufficiently alarmed, during Barack Obama’s second term, about the threat to nonwhite people’s votes.

But the most probable explanation for why both the Shelby County case and subsequent decisions chipping away at voting rights haven’t triggered a public uproar is that Chief Justice John Roberts correctly calculated that it would be best to attack voting rights incrementally.

Roberts is deeply conservative. But unlike the court’s more extreme conservatives, he prefers to make doctrinal changes slowly, one step at a time, to avoid undermining the court’s legitimacy and creating backlash. That stealthy strategy has been depressingly effective when it comes to undercutting voting rights.

Roberts wrote the Shelby County opinion carefully, minimizing its judicial activism by saying that Congress had failed to make new factual findings each time it extended the Voting Rights Act. In theory, that meant Congress could simply make such findings and re-pass the relevant section of the law. In practice, of course, Roberts knew that would not happen.

The new 5th Circuit opinion is a version of this same incrementalism. The appeals court didn’t say that no vote dilution claims can ever be brought under the Voting Rights Act, even though conservatives might welcome such a holding. Instead, it focused narrowly on the language of Section 2 of the law, which says that to win a case, the plaintiffs must prove that elections are not equally open to a protected “class” of citizens because “its members have less opportunity than other members of the electorate … to elect representatives of their choice.” The 5th Circuit reasoned that the word “class” covers only members of a specific racial group, not members of more than one racial group added together.

The decision will affect districts like Galveston County, the focus of the case, where together Black and Hispanic voters had been in the majority — until redistricting reduced their joint share to 38%. It applies only to states overseen by the court: Texas, Louisiana and Mississippi.

Nevertheless, the decision matters a lot. It is intended at a conceptual level (and maybe a political level) to split any potential coalition between Black and Hispanic voters. It’s not an accident that both groups tend to vote Democratic more than Republican, or that Republicans have made efforts to peel away those voters.

And the ruling dovetails with recent Supreme Court decisions that have made it harder and harder for voters challenging a district’s lines to prove the motivation was dilution of votes based on race — which is protected by what remains of the Voting Rights Act — and not based on party, which the court said was none of its business in 2019′s Rucho v. Common Cause.

It would be great if the Supreme Court would swoop in and overrule the 5th Circuit. That could happen: The 5th Circuit’s reading of the statute is unconvincing as a matter of text, history and logic. But if the Supreme Court lets the ruling stand or upholds it, that would be consistent with Roberts’ method on voting rights.

Death by a thousand cuts is just as effective as a stab to the heart — and less likely to get noticed.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People.” This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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