A vibrant, fully franchised electorate is the best guarantee to protect our secular Constitution and government. Without a functioning democracy, the wall of separation between state and church cannot be protected or rebuilt. A diverse and fully enfranchised electorate ensures that no single religion, sect or group can take charge of government and privilege itself or discriminate against others. Protecting voting rights, and thus our democracy, is therefore a state/church issue that should concern all secular Americans.
Very recently, the 8th U.S. Circuit Court of Appeals has dealt a stunning and deeply disturbing blow to voting rights. A three-judge panel in Arkansas State Conference of the NAACP v. Arkansas Board of Apportionment has ruled that private parties, including membership organizations, cannot sue to enforce Section 2 of the Voting Rights Act. Judge David Stras, a President Trump appointee who FFRF highlighted in its 2020 report on the Christian nationalist takeover of the federal courts, wrote for the majority, saying only the federal government may sue to enforce Section 2. For context, Section 2 of the Voting Rights Act prohibits states from creating voting laws that discriminate against voters on the basis of race, and it has become one of the cornerstones of our country’s civil rights laws since it was enacted in 1964.
Unfortunately, the slow erosion of the Voting Rights Act, and Section 2 in particular, began decades ago when the Supreme Court first began attempting to chip away at it. In 1980, the Supreme Court held in Mobile v. Bolden that Section 2 required a plaintiff to prove that a government’s discriminatory voting law was enacted or maintained at least partially for an invidious purpose. A facially neutral law would be upheld even if its effect was to disadvantage voters of a minority race or other protected group. This ruling quickly made it significantly more challenging for plaintiffs to prove that a discriminatory voting law violated Section 2.
In 1982, Congress amended the Voting Rights Act in response to the Supreme Court’s ruling in Bolden. The 1982 amendment made it clear that a plaintiff can show a violation of Section 2 through evidence establishing that the challenged law has the effect of denying racial or language minority voters the “equal opportunity to participate in the political process.”
Sadly, the Supreme Court has been otherwise successful in whittling away the Voting Rights Act through attacking Section 5 of the act. Section 5 froze in place election practices and procedures in certain predetermined jurisdictions. A formula within the Voting Rights Act was used to determine which jurisdictions Section 5 applied to. In order for a covered jurisdiction, or political subunit of a jurisdiction, to change its election practices, the proposed changes had to be reviewed and approved by the U.S. attorney general in order to ensure that proposed changes did not have a discriminatory purpose and would not have a discriminatory effect. While Section 5 was originally enacted with a “sunset provision,” meaning it would expire after a certain number of years, Congress renewed Section 5 and extended the sunset provision several times. Most recently, in 2006 Congress extended Section 5 for another 25 years, meaning it would have expired in 2031. Alas, the Supreme Court halted Section 5 long before 2031.
In its 2013 decision, Shelby County v. Holder, the Supreme Court rendered Section 5 inoperable. The court held, 5–4, in its ruling that the formula used to determine which jurisdictions must seek approval of proposed election law changes is unconstitutional. The practical effect of this ruling is that the previously affected jurisdictions, such as Texas and Alabama, no longer need to seek approval before making changes to their election laws. Jurisdictions with a long history of enacting racially discriminatory election laws are now free to alter their election laws and procedures without any federal oversight. In the decade since Shelby County, Section 2 of the Voting Rights Act is now the main mechanism for plaintiffs to challenge, and hopefully end, discriminatory election laws.
In a more reassuring development, the Supreme Court in June of this year, issued a surprising but welcome decision in a crucial voting rights case, Allen v Milligan. The majority opinion held that Alabama’s redistricting plan was likely invalid under Section 2 of the Voting Rights Act because the plan harmed Black voters’ rights. However, dissents by four of the court’s members made clear that the Supreme Court is not guaranteed to uphold democracy and rule in favor of voters when future voting rights cases come before it.
For now, the 8th Circuit’s ruling only applies to Arkansas, Indiana, Minnesota, Missouri, Nebraska, North Dakota and South Dakota. However, this ruling will most likely be appealed to the Supreme Court, meaning that the high court will have another opportunity to further erode the Voting Rights Act by imposing the 8th Circuit’s deeply undemocratic holding on the rest of the country, rolling back decades of civil rights victories in the process.
Attacks against voting rights laws are rooted in Christian nationalism
In recent years, states have passed and continue to attempt to pass laws seeking to suppress voting rights. These laws are rooted in Christian nationalist ideology, as their goal is to restrict voting by minority and progressive-leaning populations. For instance, laws restricting voting on Sundays are motivated by the desire to enshrine Christian teachings regarding the Sabbath into the law and negatively impact minority voters, especially Black American communities, who often hold community voting events on Sundays. Last August, Ohio’s conservative Legislature attempted to make it more difficult to pass ballot initiatives in an effort to prevent reproductive rights advocates from getting a pro-choice constitutional amendment on the state’s ballot.
Christian nationalists want to suppress the votes of nonwhite and nonevangelical Christian Americans knowing that voters, if given full and equal access to vote, have the power to thwart the Christian nationalist agenda on both the state and national level.
The 8th Circuit’s distressing ruling should serve as a reminder — or perhaps a wake-up call — that voting rights, and thus our democracy, is at peril. The wall of separation between state and church cannot be retained, let alone rebuilt, if states and the judiciary continue to allow the slow and steady erosion of the laws protecting citizens’ right to vote. For this reason, all Americans who care about state/church separation should also care about voting rights.