Voting rights and the American electoral system in the 2020s stand in a precarious position. While the Voting Rights Act of 1965 (the Act) served as a basis to protect minority voting rights throughout the latter half of the twentieth century, the jurisprudence of the Roberts Court has narrowed its protections and given much greater discretion to states to enact election laws that negatively impact voting rights. Most significant was the Shelby County v. Holder decision, which effectively rendered unconstitutional Section 5 of the Voting Rights Act (Section 5), a preclearance system that prohibited states with histories of voter abridgment from enacting election laws without oversight from the U.S. attorney general.
The Shelby County decision paved the way for states to enact election laws that abridged the voting power of minority groups because Section 5 was the Voting Rights Act’s primary and most effective mechanism of enforcement. Because these laws were enacted without explicit mention of race, states were further able to bypass challenges under the Equal Protection Clause of the Fourteenth Amendment, which requires plaintiffs challenging facially neutral laws to show that they were enacted with discriminatory intent. This left Section 2 of the Voting Rights Act (Section 2) as the last viable protective mechanism of voting rights.
Section 2 provides a cause of action for individuals who have been harmed by laws that hamper their ability to vote based on race. Section 2 litigation is more costly and burdensome than the Section 5 preclearance system, but it saw some success in the wake of Shelby County. However, Section 2 faced its own challenge in the U.S. Supreme Court decision Brnovich v. Democratic National Committee.