DIMINISHING VOTING RIGHTS

Yes, it's happening right here in America: our fundamental voting rights are being challenged on three fronts: (1) claims of voting fraud, (2) the suppression of voting rights, and (3) the overturning of Section 2 of the Voting Rights Act. All three intersect to deny Black voters and other historically marginalized communities the opportunity to vote.  We enumerate.

VOTING FRAUD

       Has it occurred? Do fraudulent voting assertions provide any justification for stricter voter identification laws and other restraints on voting?  The data shows it does not.

       The Brennan Center for Justice studies show infinitesimal occurrences of voting fraud--0.00004% to 0.0009% of the votes cast.  After the 2020 election, a study by a team at the University of Chicago found no evidence of systemic voter fraud affecting that election.

        None of the 82 lawsuits filed in federal or state courts challenging election procedures or claiming fraud in the 2020 election, mostly filed on behalf of the Trump campaign, were successful.  For example, in Ward v. Jackson (2020), an Arizona Superior Court case, the court found no fraud or misconduct and that the ballot-duplication procedures were 99.45% accurate.

        All of Trump's claims of voter fraud regarding the 2020 election proved to be unfounded.  Two examples:  On election night, Trump claimed that Democrats were trying to steal the election, and if only the legal votes were counted, he won.  On November 12, 2020, Trump asserted that the voting machines manufactured by Dominion Voting Systems Corporation had switched votes from him to Biden, but federal election officials said there was no evidence that votes were altered or deleted. Dominion's defamation suit against Fox News for making these false claims was settled in April 2023 with Fox agreeing to pay $787.5 million. These false claims by Trump persisted until the January 6th insurrection and continue to the present day, including the seizure of 2020 voting records to uncover fraud.

       Simply put, voter fraud in any significant amount does not exist in the United States, and contentions by Trump to the contrary are totally unfounded, providing no basis whatsoever for stricter voting protections.

VOTER SUPPRESSION

       It is fundamental, and a truism, that all candidates seek to win their elections, not lose.  Not all candidates try to change the election laws to improve their chances of winning, not so for Trump.  The evidence is replete with his wanting to change the rules to suppress the voting rights of Black voters and other voters of color. The several attempts by Trump to restrict (read repress) voting are staggering.  All run afoul of the United States Constitution, which gives the states authority over elections, subject to Congress making or altering such state regulations (Article 1, Section 4).  Thus, the power over elections does not reside in the Executive Branch.

       Yet, Trump has advocated in the Make Elections Great Again Act for a national photo-ID requirement, the limiting of mail-in voting, setting the date--election day--by which ballots must be received, and changing voter registration rules by adding proof of citizenship to the federal voter-registration form.  His Administration also supports the SAVE America Act which was introduced in Congress in February 2026 with more stringent provisions than its predecessor, the Safeguard American Voter Eligibility (SAVE) Act.  It is now stalled in Congress and would require documentary proof of United States citizenship (photo identification, passport, or birth certificate) to register to vote in federal elections. Finally, Trump has suggested that the federal government should nationalize election administration even though the Constitution gives States authority over elections subject to oversight by Congress.

       All these proposals could have a profound effect on the Black and other historically marginalized communities registration and voting, especially the perceptions of minority voters that voting is now more difficult. A Study in 2023 by the Brennan Center for Justice, VoteRider, Public Wise, and the Center for Democracy and Civic Engagement at the University of Maryland showed that the rate of U.S. citizens lacking passport, birth certificate, and naturalization papers was higher among Black Americans than white Americans (white Americans 8%, Black Americans 11%)That same study showed that Black voters were 3.7 times more likely than white voters not to have a government photo-ID. The Pew Research Survey in 2018 found that 69% of Black voters said that voter-ID requirements could make voting harder.  Similarly, the Cooperative Election Study conducted by three universities over several election cycles found that voters of color had more concerns than white voters about voter access or documentation.

        There have been several court decisions finding voter suppression resulting from stricter voting requirements impermissible. The United States Court of Appeals for the Fifth Circuit in Veasey v. Abbott (2016) found that Texas' strict voter-ID laws had a discriminatory effect on Black and Latino voters..  Likewise, in North Carolina NAACP v. McCrory (2016) the United States Court of Appeals for the Fourth Circuit held that voter-ID requirements, reduced early voting, and the elimination of same-day registration targeted Black voters with almost surgical precision and therefore were unlawful.  Earlier, the United States Supreme Court in Crawford v. Marion County Election Board (2008) acknowledged that voter-ID laws could be unconstitutional if they imposed a severe burden.

Restricting voter access and thereby suppressing participation among Black voters and other voters of color to prevent nonexistent voter fraud clearly has no merit. Proponents of such laws--the Trump Administration---certainly must know of this outcome but do so anyway to enhance the chances of their election success.

SECTION 2 OF THE VOTING RIGHTS ACT

       Currently, the Supreme Court has before it yet again another case challenging Section 2 of the federal Voting Rights Act of 1965, which protects against vote dilution of minority groups.  In Louisiana v. Callais, the Court will decide how far the states can go to correct minority dilution without violating the Equal Protection Clause of the 14th Amendment to the United States Constitution, which forbids discrimination by states based on race.     Briefly, the Louisiana legislature redrew the boundary lines for its voting districts after the 2020 Census, creating one majority-Black district out of six, even though the State is one-third Black. After a lawsuit, Louisiana created a second majority-Black district to correct the imbalance.  White voters sued, claiming that race was used too heavily and that doing so was racial gerrymandering.

       Thus, this asserted tension between the Voting Rights Act and the 14th Amendment will affect how Section 2 works nationwide.  The Supreme Court could limit when race may be considered in drawing Congressional districts.  Or, in the worst-case scenario, the Court could hold that Section 2 is unconstitutional, thereby reversing over 60 years of judicial precedent protecting Black voting rights. 

If Section 2 is struck down, Republican-led states particularly in the South could seek to eliminate majority-minority districts which had been established to correct racial imbalances so that Black voters could elect candidates of their choice.   

       Whether any state redistricting changes would impact the 2026 election-year cycle would depend on when such changes become effective under state law and if that happens prior to the upcoming mid-term elections. The possible implementation could vary by state. As the New York Times noted in a recent story on March 2nd, the clearest way to assess the effect of any Supreme Court decision is to look at the primary calendars of the states.  Changes by state legislatures would presumably have to be made before their state primary was held; otherwise, it would be too late to have any effect in the 2026 election-year cycle.  The Times said that its analysis suggested that if such changes were made, Democrats would be in danger of losing roughly 12 majority-minority districts.  Of course, such changes would engender gerrymandering litigation that would be tempered by a Supreme Court decision on the Voting Rights Act favorable to Republicans.

       The potential harm of this impending Supreme Court decision becomes even more impactful were a myriad of voter suppression laws enacted throughout the Country.  Republicans could well prevail in the midterms, not based on their policies or true voter preference, but on their ability to engage successfully in redrawing voter maps and passing laws deterring Black voters and other historically marginalized communities from voting.  That outcome brought about by President Trump, his Congressional allies, and a conservative Supreme Court would be accomplished despite the longstanding protections of the Voting Rights Act and the Constitution.

Barbara McDowell Social Justice Center