Last month, two Republican federal appeals court judges effectively abolished the law banning race discrimination in elections in seven states. On Thursday, the Supreme Court issued a brief order blocking this decision. The upshot is that, at least for now, it is still illegal for a state to disenfranchise someone because of the color of their skin.
That said, the most striking thing about the Court’s decision in Turtle Mountain Band v. Howe is that three justices dissented. Although none of them explained why they voted the way they did, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch all voted to leave in place a lower court decision that effectively nullified one of the most consequential civil rights laws in American history.
Although the 15th Amendment — which was enacted shortly after the Civil War — was supposed to prohibit race discrimination in US elections, anyone familiar with the history of the Jim Crow South knows that this amendment was ineffective for most of its existence. It wasn’t until 1965, when Congress enacted the Voting Rights Act, that this ban gained teeth.
One of the Voting Rights Act’s two most important provisions required states with a history of racist election practices to “preclear” any new election laws with federal officials before they took effect. The other provision permitted both private individuals and the United States to sue state and local governments that target voters based on their race.
Together, these two provisions proved to be one of the most potent laws in American history. In the first two years after President Lyndon B. Johnson signed the Voting Rights Act into law, for example, Black voter registration rates in the Jim Crow stronghold of Mississippi rose from 6.7 percent to around 60 percent.
In recent years, however, the Court’s Republican majority has been extraordinarily hostile to this law. In Shelby County v. Holder (2013), the Republican justices voted to deactivate the preclearance provision. And other decisions imposed arbitrary and atextual limits on the Voting Rights Act. In Brnovich v. Democratic National Committee (2021), for example, the Republican justices claimed that voting restrictions that were commonplace in 1982 remain presumptively lawful.
In Turtle Mountain, two Republicans on the US Court of Appeals for the Eighth Circuit handed down a decision that would have rendered what remains of the Voting Rights Act a virtual nonentity. They claimed that private citizens are not allowed to bring lawsuits enforcing the law, which would mean that Voting Rights Act suits could only be brought by the US Justice Department — which is currently controlled by President Donald Trump.
The Eighth Circuit oversees federal lawsuits out of Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota. So, while the Eighth Circuit’s decision was in effect, the Voting Rights Act effectively did not exist in those seven states. I summarized the Eighth Circuit’s reasoning, and explained why it is erroneous, here.
Had the Eighth Circuit’s position prevailed, some private citizens might have been able to bring suits under the 15th Amendment itself. But that amendment uses very similar language to the Voting Rights Act. So the Eighth Circuit’s attack on the 1965 law would have likely applied with equal force to the Constitution.
In any event, it now appears that this threat to liberal democracy has been averted. Only half of the Supreme Court’s six Republicans publicly dissented from the Court’s order reinstating the law, and all three of the Court’s Democrats appear to have voted to save the law.
It should be noted that the Court’s order in Turtle Mountain is only temporary. So it is, at least, possible that some of the justices will change their votes. But, if nothing else, Thursday’s order is a sign that, while the Court’s Republicans are eager to weaken the Voting Rights Act, they do not have the votes to kill it outright.
