Summary

This election season has witnessed a string of huge court victories vindicating the right to vote and invalidating down restrictive voting laws—many passed in the wake of the Supreme Court’s 2013 decision in Shelby County v. Holder striking down a core part of the Voting Rights Act. In case after case, courts have carefully reviewed tough voting restrictions, and concluded that these laws make it harder for racial minorities and others to exercise their constitutional right, perpetuate past discrimination, and cannot be justified by states’ purported governmental interests. Applying the Constitution, the Voting Rights Act, or both, courts are making it clear that states must respect the voting rights of all citizens, and cannot resort to tenuous justifications to burden the fundamental right to vote, a right protected by more provisions of the Constitution than any other right.

In some of these cases, courts have issued broad relief, freeing voters from discriminatory laws and ensuring that voters can go to the polls this November without barriers; in others, the courts have softened voting restrictions—creating safeguards that blunt the worst effects of discriminatory laws, but that may or may not be enough to secure the right to vote for all. Even though the scope of relief provided has varied, what we are seeing is potentially an important shift in the law: courts are refusing to rubberstamp state laws that make it harder for some citizens to vote and are holding states to the requirement of showing that election regulations help, not hurt, our democracy.

The Supreme Court, however, remains closely divided on the issues, as evidenced by the Court’s recent 4-4 split over whether to stay an appellate ruling invalidating North Carolina’s omnibus voter suppression law, a ruling in which the court of appeals found that the law’s provisions surgically targeted African American voters. Given the ideological divisions on the Supreme Court, the next Justice confirmed to the Court will effectively have the power to determine whether voter suppression laws like North Carolina’s that make it harder for minorities to vote will be enforced or struck down. In the meantime, though, one thing is clear: the jurisprudence developed by the lower courts offers a solid foundation for enforcing the promise of equal political opportunity reflected in both the Constitution and the Voting Rights Act.

This issue brief examines recent voting rights cases and core themes of the new voting rights jurisprudence.