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Voting Rights: A Critical Two Years

Multiracial democracy in America is under siege.

Last Updated: June 14, 2022
Published: June 14, 2022

This piece was originally published in the Democracy Journal, as part of its symposium on the State of Black America.

Multiracial democracy in America is under siege. The House Select Committee to Investigate the January 6 Attack on the U.S. Capitol is presenting overwhelming evidence that the highest echelons of government encouraged and participated in a brazen attempt to sabotage the 2020 presidential election and violently override the will of the people, justifying their subversion with racist lies about voter fraud. This scheme included efforts to exclude the votes of millions of predominantly people of color through vote suppression, baseless litigation ploys, and even requests that public officials “find,” cancel, or override votes. The scheme failed, but the Big Lie that fueled it—and the virulent anti-democratic movement it unleashed—continues to threaten America’s electoral system and the voting rights of Black Americans and other Americans of color. State lawmakers have released an unprecedented wave of antidemocratic legislation. And the Supreme Court broke the dam that would have restrained the flood, dramatically rolling back longstanding legal protections for voting rights and fair representation. The consequences of these developments are grim. Contrary to what some have suggested, the evidence is strong that attacks on voting rights and elections undermine, and are already undermining, the political participation and power of Black people and other communities of color. The next few years are critical: Unless those attacks are thwarted and solid legal guardrails put in place, the damage could get far worse, for Black Americans and for democracy as a whole.

Blocking the Black Vote

The current attacks on Black people’s membership in the American political community have no modern analogue. For the first time since the end of Reconstruction, there is a sustained nationwide legislative assault on voting rights. The modern legislative push to restrict voting access began after a surge in voter turnout helped put the first Black person in the White House. State legislatures then enacted a flurry of restrictive voting laws that multiple federal courts concluded had the intent and effect of discriminating on the basis of race. Today there is a blizzard. Last year alone, 19 states passed 34 laws making it harder for Americans, and especially Black Americans, to vote. That accounts for more than one-third of all restrictive voting laws passed in more than a decade. And there’s no sign of this disenfranchisement effort slowing down. Hundreds of bills undermining voting rights have already been considered in the 2022 legislative session. At least three have already passed this year. These new laws build on other restrictions passed in recent years, compounding the effect and amplifying the burdens on voters of color.

This legislative movement is driven by the same racist charges about the election being stolen that drove the attack on the Capitol. It bears repeating that this was a lie: The 2020 election has been deemed the most secure in U.S. history, and allegations of widespread voter fraud have been repeatedly found baseless. Nonetheless, recent Brennan Center research found that most lawmakers who championed antidemocratic legislation openly questioned the legitimacy of the 2020 election, and many justified their legislation as a necessary response to false claims about the election. Our research also found that legislators in 16 of 17 of states where courts heard and rejected attempts to challenge the 2020 election then introduced bills to restrict voting access in 2021. In 15 of those states, provisions in new anti-voting bills were directly traceable to specific false claims in those lawsuits. In short, state legislators have rapidly passed restrictive voting bills in response to a racially coded call to “protect” elections from fraud following the overwhelming rejection by voters of color of a President who thrived on white grievance.

Beyond the Big Lie, a growing body of scholarly work shows that the push to restrict access to voting in the states is inextricable from race. Social science studies over the past decade have linked restrictive voting legislation to increases in political participation or population growth by voters of color. Forthcoming Brennan Center studies provide evidence that racial resentment is one of the most significant factors driving efforts to make voting more difficult. The public generally understands that charges of voter fraud are intended to curtail the political power of communities of color—indeed, that’s the basis on which they either support or oppose efforts to curtail voting access.

The 2020 election provides striking examples of the connection between Black political participation and restrictive voting legislation. Previously, mail ballots were noncontroversial. Republicans in Georgia adopted no-excuse absentee voting in 2005, and as recently as 2019, broad bipartisan majorities expanded mail voting in Pennsylvania. But in 2020—the first year nonwhite voters relied on mail voting in large numbers because of the pandemic—mail voting came under meritless attack as ripe for fraud. In Georgia, nearly 30 percent of Black voters cast their ballots by mail in 2020, compared to 24 percent of white voters. Just after Black voters embraced mail voting, the state passed a sweeping law rolling it back.

The Damage to Black Voters is Real

State lawmakers in almost half the country have erected roadblocks to voting on virtually all avenues on which Black voters rely. Nevertheless, some suggest that voting restrictions are inconsequential in effect even if enacted with racist intent. That is wrong. Social science research has found measurable, negative turnout effects for many of the types of voting restrictions recently passed, especially for voters of color. For example, multiple studies have found that stricter voter ID requirements and curbs on polling place access markedly depress turnout, with larger effects for communities of color. The same is true with policies reducing early in-person voting opportunities, moving back registration deadlines, and causing long lines on Election Day.

As new restrictive laws take effect, there is mounting evidence that they are already disenfranchising voters. For instance, fewer than 1 percent of absentee ballots were rejected in Texas in 2020; after the state enacted a stringent voter ID requirement for those ballots, rejection rates skyrocketed and reached almost 22 percent in the largest counties. And after Georgia passed mail voting restrictions, voters in the state’s 2021 local elections were 45 times more likely to have their mail ballot applications rejected—and ultimately not vote as a result—than in 2020.

These voting restrictions are disproportionately harming people of color. Black voters make up a third of Georgia’s electorate, but accounted for half of all rejected late ballot applications last year. An analysis in Florida found that the state’s new restrictions on ballot drop boxes impose greater burdens on Black voters than other groups. And researchers have shown the racial turnout gap grows when states enact strict voter identification laws.

The cumulative impact of voting barriers is significant. Black voters wait on average 45 percent longer than white voters to cast their ballots, with some voters in majority-Black cities like Atlanta waiting upwards of 10 hours to vote. And contrary to popular belief, turnout among Black voters and other voters of color remains significantly lower than among white voters. Despite the record overall turnout in the 2020 election, only 58.4 percent of nonwhite voters participated, compared to 70.9 percent of white voters. The participation gap persists.

Of course, turnout is also not the only metric of harm. Empirical measurements do not account for the massive investments of resources needed to overcome obstacles to voting—resources that could be directed elsewhere. Nor do they account for the dignitary harms to voters in Black and other targeted communities. It is an insult to ask those voters to cushion the blows to democracy with their resilience.

Curbing Black Representation

The current threats to equal representation and Black political power are not limited to voting laws. Black communities have been especially hard hit in this year’s redistricting process, which will determine the allocation of political representation.

Both political parties engaged in aggressive gerrymandering, locking in an unfair advantage designed to entrench themselves in power where they could. The media’s focus on the partisan horse race (spoiler: Republicans gained the greater advantage) obscures the disproportionate harm these abuses inflict on Black communities and other communities of color. Much of this year’s gerrymandering was accomplished at the expense of communities of color, which made up the bulk of the nation’s population growth this decade. In the closely-divided state of North Carolina, for example, the legislature initially passed a congressional map that gave Republicans an advantage of 10 to 4 seats over Democrats, in part by drawing out one of the state’s only two Black members of Congress. (That map has been improved after litigation.) In Georgia, people of color drove 100 percent of the state’s population growth but saw no corresponding increases in political power. Black Georgians now make up 33 percent of the state’s population but out of the state’s 14 congressional districts, only two (14 percent) are majority Black. Conversely, white voters will dictate outcomes in 9 of the 14 seats, despite comprising only around 50 percent of the population. Other fast-growing, diverse states, like Florida and Texas, saw similar racially targeted abuses. Not surprisingly, these were among states that passed the most aggressive voting restrictions last year. Discriminatory redistricting abuses have been especially acute at the local level, where lawmakers have used a range of tactics to curb the political clout of communities of color. These abuses significantly limit the political influence of Black voters and other voters of color even when they overcome vote suppression.

A Multi-Front Assault

The sharp escalation of voting rights and redistricting abuses in 2022 is part of an unprecedented multi-pronged attack on the foundations of our electoral system. Fueled by the Big Lie, anti-democratic innovations provide partisans with new tools to thwart democracy and rig electoral outcomes.

Most brazen among these is an alarming new species of “election sabotage” legislation that has proliferated in the wake of the insurrection. Most brazenly, lawmakers in at least seven states last year introduced bills that would have given partisan state officials the power to override election results outright. An Arizona bill expressly authorized the legislature to “vote to reject or confirm the preliminary results of the election.” These extreme bills died, but other election sabotage bills have empowered partisans to change who runs elections, who counts the votes, and how. Nine states passed bills last year, and five so far this year. Not surprisingly, these are many of the same states that saw heated efforts to challenge the 2020 election results based on false accusations of voter fraud in communities of color, and the same states that passed discriminatory voting laws and maps. Already, new laws have enabled Georgia legislators to purge Black members from county election boards, and partisans in Texas and elsewhere to intimidate election officials with criminal and civil penalties.

Equally alarming is the surge of disinformation-fueled threats and harassment against state and local election officials since 2020. One in six election officials nationwide has experienced threats, according to a recent Brennan Center survey—shocking in a mature democracy. Almost all of them worry that politicians will try to interfere in the administration of future elections, and many worry that they will face pressure to certify election results in favor of a specific candidate or party. These threats are triggering an election staffing crisis; nearly one third of surveyed officials know election workers who have left their jobs for these reasons, and an additional one in five say they are likely to leave their jobs before 2024.

At the same time, races for election offices are increasingly politicized. In the 27 states with contests this year, at least 21 current candidates for secretary of state—the chief election administrator in most states—have denied the validity of the 2020 election. Given the racially charged rhetoric driving all of these developments, people of color are especially vulnerable to having their votes undermined or canceled.

The Retreat of the Courts

This wide-ranging assault on democracy and Black political participation is unfolding in the face of a dramatic retreat of the federal courts from protecting voting rights. In its 2013 Shelby County v. Holder decision, the Supreme Court infamously gutted the Voting Rights Act’s preclearance requirement, hollowing out a core provision that had curtailed vote suppression for half a century.
The Roberts Court project of dismantling voting protections that Black communities have long relied upon did not stop there. Just last year, the Court significantly weakened the other key provision in the Voting Rights Act prohibiting discriminatory vote suppression nationwide. And in a string of unsigned orders in its “shadow docket” over the past two years, the Court established a new policy of preventing federal courts from remedying voting rights violations when an election is imminent—including when the election is half a year or more away. As a result of that policy, plainly discriminatory maps will be used for 2022 congressional elections in Alabama, Georgia, and elsewhere; and most voting rights plaintiffs aren’t even asking for rulings blocking discriminatory new voting practices until after the election.

In recent years, the Court has significantly degraded federal constitutional protections against unfair burdens on voting rights, created loopholes to shield intentional race discrimination from legal challenges, and weakened federal statutory protections against unfair voter roll purges. It has completely barred federal courts from policing partisan gerrymandering, making it easier for bad actors to get away with discrimination by claiming that their actions are motivated by partisanship, not race, despite racial polarization in voting producing the same result. And despite all this damage, the Court’s wrecking ball is still trained on voting rights. The Justices will soon hear arguments in a case that could raze the Voting Rights Act’s protections against discrimination in redistricting. And a pending case asks the Court to adopt a radical new theory that would insulate state legislatures from almost all checks against voting rights abuses in their regulation of federal elections, regardless of whether those regulations violate state constitutions or are vetoed. Four Justices have already expressed sympathy for that approach.

In short, at a time when Black communities most need judicial protection of voting rights, those protections are being taken away. Federal courts remain a critical backstop against the most egregious abuses—indeed, federal trial courts in four states have issued rulings against new voting restrictions this year (which may or may not survive on appeal)—but many abuses now go unremedied. State courts have, in some places, stepped in to fill the breach. But not all state courts are hospitable to voting rights, which were previously protected primarily by federal law. Disturbingly, a number of state courts that intervened on behalf of voters in 2020 are now facing attack. The Brennan Center has identified new laws in nine states last year targeting state courts for their role in election cases, along with new efforts to impeach state court justices who ruled in favor of voting rights or fair maps.

Where Are We Going?

American democracy is at a critical inflection point. On the one hand, it is no longer unthinkable that future elections will be tainted not only by widespread vote suppression but also by wholesale efforts to reject or sabotage the results. Given the ongoing movement to politicize and undermine the electoral system, the risk of manipulating election results is especially high for 2024. A successful scheme could spell the end of democracy. On the other hand, a new multiracial, multi-issue movement has rallied to counteract vote suppression and election sabotage efforts, mobilizing communities and laying the groundwork for potentially transformational voting rights and democracy reforms. Indeed, Black voters have spearheaded this mobilization. The fate of our democracy hinges on which of these movements prevail.

One of the critical lessons of the past two years is that our democracy cannot be saved without protecting the voting rights and equal citizenship of Black Americans and other communities of color. What began as racially targeted attacks on voting rights has expanded into a multi-pronged attack on all the underpinnings of our democratic system. Political forces working to maximize their power at the expense of communities of color are undermining the entire basis of democracy rather than sharing it. In short, the attacks against Black voters and other voters of color are attacks on democracy itself. If democracy is not working for some of us, it is not working at all. Any effort to preserve democracy must stamp out efforts to sideline Black people and other targeted groups. America is multiracial, and our democracy must reflect that reality. Half measures won’t save it. Conversely, unless the threats to democracy are stemmed, efforts to disempower Black Americans and other Americans of color will persist and worsen.

The question remains: What are we willing to do about it? The fate of democracy in America depends on urgent intervention. The next two years are critical. To live up to the country’s proclaimed ideals, we must both fend off the current attacks and establish strong national guardrails so America does not succumb to resurgent antidemocratic and racist schemes. Efforts to outrun or out-organize vote suppression, gerrymandering, and election sabotage can last for only so long. Ultimately, it is Congress’s responsibility to protect against vote suppression and democratic backsliding.

The Freedom to Vote: John R. Lewis Act, which narrowly failed to overcome a filibuster in March, would not only reverse most of the anti-democratic attacks on Black voters but also pave the way for a far more equitable and stable democracy. It would establish national standards for casting and counting ballots in federal elections, while also protecting against efforts to roll back voting rights and discard or otherwise manipulate election results. Critically, it would revive and modernize the Voting Rights Act’s protections against racial discrimination in voting. A broad coalition of Americans came together—crossing lines of race, class, religion, age, gender, and more—to vault voting rights to the top of the national agenda this past year. While the bill was narrowly defeated, the coalition that championed it is still strong and determined. The history of voting rights and social movements in America shows what an organized and activated public can achieve. The future of democracy in multiracial America depends on sustained public pressure by people who will not give up on equal representation.