Black voting rights in the United States rest on two constitutional amendments and a network of federal statutes, chiefly the Fifteenth Amendment, the Twenty-Fourth Amendment, and the Voting Rights Act of 1965. The Constitution has prohibited racial discrimination in voting since 1870, but the practical ability to cast a ballot has been contested at every stage of American history, and recent Supreme Court decisions have narrowed the tools available to challenge discriminatory voting laws.
The Constitutional Foundation
The Fifteenth Amendment, ratified on February 3, 1870, prohibits the federal government and every state from denying or restricting the right to vote based on race, color, or previous condition of servitude. It also gives Congress the power to enforce that guarantee through legislation.1Congress.gov. U.S. Constitution – Fifteenth Amendment For nearly a century after ratification, states across the South circumvented the amendment through literacy tests administered at the discretion of white registrars, grandfather clauses that exempted white voters from those tests, white primaries that shut Black voters out of the only elections that mattered, and poll taxes that added a financial barrier to the ballot. The amendment remained on the books but had little practical force until Congress passed enforcement legislation in 1965.2National Archives. 15th Amendment to the U.S. Constitution – Voting Rights (1870)
The Twenty-Fourth Amendment, ratified in 1964, bans poll taxes in federal elections, including primaries for President, Vice President, and members of Congress.3Congress.gov. U.S. Constitution – Twenty-Fourth Amendment Two years later, the Supreme Court extended that principle to state elections in Harper v. Virginia Board of Elections, holding that conditioning the right to vote on any fee violates the Equal Protection Clause of the Fourteenth Amendment. Wealth, the Court found, has no relationship to a citizen’s ability to participate in elections and cannot serve as a qualification for voting.4Justia. Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966) Harper matters beyond poll taxes because it established that any financial barrier to voting triggers serious constitutional scrutiny.
How the Voting Rights Act Works
The Voting Rights Act of 1965 is the most important piece of voting rights legislation in American history. It moved enforcement from the courtroom to the ground level, gave the federal government direct power to override state practices that suppressed Black voter participation, and banned literacy tests outright in jurisdictions that had used them.5National Archives. Voting Rights Act (1965) The Act created two enforcement mechanisms that anchored federal protection for the next half century.
Section 2: The Nationwide Prohibition
Section 2 prohibits any voting rule that results in the denial of the right to vote based on race or color, and it applies in every state. A challenger does not need to prove that a law was designed to be discriminatory. Under the results test added by the 1982 amendments, a violation is established if the totality of circumstances shows that the political process is not equally open to members of a racial group and they have less opportunity to participate and elect their preferred candidates.6Office of the Law Revision Counsel. 52 USC Ch. 103 – Enforcement of Voting Rights Courts examine factors like the jurisdiction’s history of official discrimination, the degree to which voting is racially polarized, and whether elected officials are responsive to the minority community’s concerns.
Section 5: Preclearance
For nearly 50 years, Section 5 required certain jurisdictions to get federal approval before changing any voting law. Covered states and counties were identified by a formula tied to whether a jurisdiction had used discriminatory tests and had abnormally low voter registration or turnout as of specific benchmark years.7Office of the Law Revision Counsel. 52 USC 10303 – Suspension of the Use of Tests or Devices Those jurisdictions had to submit proposed changes to the U.S. Attorney General or a federal court in Washington, D.C., and prove the changes would not make minority voters worse off.8Department of Justice. About Section 5 Of The Voting Rights Act Preclearance was effective because it blocked discriminatory laws before they could take effect, rather than forcing voters to sue after the damage was done.
What Changed After Shelby County v. Holder
In 2013, the Supreme Court struck down the coverage formula that determined which jurisdictions needed preclearance. In Shelby County v. Holder, the Court ruled that the formula relied on data from the 1960s and 1970s and no longer reflected current conditions.8Department of Justice. About Section 5 Of The Voting Rights Act The Court did not strike down Section 5 itself, but without a valid formula to identify covered jurisdictions, preclearance became inoperative. States that had needed federal approval for decades were suddenly free to change voting laws without advance review.
The consequences arrived quickly. Within years of the decision, at least 29 states passed nearly 100 laws that made it harder to register, stay on the voter rolls, or cast a ballot: tighter ID requirements, reduced early voting periods, closed polling places, and new limits on mail-in voting. The burden of enforcement shifted entirely to individual voters and the Department of Justice, who now must challenge discriminatory laws after they take effect. Section 2 lawsuits are expensive and slow, and they sometimes fail to produce results until after one or more elections have already been conducted under the challenged rules.
The Higher Bar Set by Brnovich
The 2021 Supreme Court decision in Brnovich v. Democratic National Committee made Section 2 challenges significantly harder to win. The Court laid out five guideposts for evaluating whether a voting rule violates Section 2: the size of the burden on voters (the system must tolerate the “usual burdens of voting,” and mere inconvenience is not enough), whether the rule was standard practice in 1982 when Section 2 was last amended, the size of any racial disparity, the alternatives available in the state’s overall voting system, and the strength of the state interests behind the rule.9Supreme Court of the United States. Brnovich v. Democratic National Committee, 594 U.S. 647 (2021)
Applying that framework, the Court upheld Arizona’s policy of discarding ballots cast at the wrong precinct, finding that a disparity affecting roughly 1% of minority voters versus 0.5% of other voters was too small to matter when the rule worked for over 98% of everyone. The practical effect is that plaintiffs challenging new voting restrictions must show a substantial burden, not just a measurable one, and they must overcome any legitimate state interest the government puts forward, such as preventing fraud.
Federal Protections Still in Force
Voter Intimidation Statutes
Multiple federal laws make it a crime to intimidate, threaten, or coerce someone for voting or trying to vote, and they apply to both government officials and private individuals. Section 11(b) of the Voting Rights Act prohibits intimidation, threats, or coercion directed at any person for voting, attempting to vote, or helping someone else vote.10Office of the Law Revision Counsel. 52 USC 10307 – Prohibited Acts A separate federal criminal statute makes it an offense punishable by up to one year in prison to intimidate or threaten someone for the purpose of interfering with their right to vote or influencing how they vote in a federal election.11Office of the Law Revision Counsel. 18 USC 594 – Intimidation of Voters Under 18 U.S.C. § 245, using force or threats to interfere with someone’s right to vote, qualify to vote, or serve as a poll worker is a federal offense, though prosecution requires written certification from the Attorney General or a top deputy.12Office of the Law Revision Counsel. 18 USC 245 – Federally Protected Activities
The Department of Justice’s Civil Rights Division monitors polling places and ballot-counting sites during elections. The Division deploys federal observers appointed by court order and sends its own attorneys and staff to monitor elections directly, with observers documenting what they witness and filing reports with the Division.13Department of Justice. About Federal Observers And Election Monitoring
The National Voter Registration Act
The National Voter Registration Act of 1993, often called the Motor Voter law, requires every state motor vehicle office to offer voter registration as part of the driver’s license application process. A license application or renewal automatically serves as a voter registration application unless the person declines. Public assistance offices, including those administering food assistance, Medicaid, and programs for people with disabilities, must also offer voter registration services.14U.S. Department of Justice. The National Voter Registration Act of 1993 (NVRA)
The NVRA also limits when and how states can remove voters from the rolls. Any systematic removal must be completed at least 90 days before a federal primary or general election. Once that quiet period begins, large-scale purges based on change-of-address data, computerized matching programs, or third-party challenges must stop.15U.S. Department of Justice. NVRA List Maintenance Guidance This prevents last-minute purges that could catch eligible voters off guard with no time to re-register.
Provisional Ballots
If you arrive at the polls and your name is missing from the registration list, or an election official challenges your eligibility, federal law guarantees you the right to cast a provisional ballot. Under the Help America Vote Act, any person who declares they are registered and eligible to vote may cast a provisional ballot after signing a written statement affirming eligibility. Election officials must give you written information about how to check whether the ballot was ultimately counted.16Office of the Law Revision Counsel. 52 USC 21082 – Provisional Voting and Voting Information Requirements The process for verifying and counting those ballots varies by state, and not all provisional ballots end up being counted.
Redistricting and Vote Dilution
How district lines are drawn determines whether Black voters can translate their numbers into political representation. Racial gerrymandering takes two primary forms. Packing concentrates Black voters into as few districts as possible so their influence is contained. Cracking splits Black communities across several districts so they cannot form a majority anywhere.
The Supreme Court has ruled that race cannot be the predominant factor in drawing district boundaries unless the state demonstrates a compelling reason and tailors the plan narrowly to achieve it. Section 2 of the Voting Rights Act separately requires the creation of districts where minority voters have a genuine opportunity to elect their preferred candidates, when certain conditions are met.
The 1986 decision in Thornburg v. Gingles established the framework for challenging district maps under Section 2. A minority group must show that it is large enough and geographically concentrated enough to form a majority in a reasonably drawn district; that its members are politically cohesive and tend to support the same candidates; and that the white majority votes as a bloc in a way that usually defeats the minority group’s preferred candidates.17Justia. Thornburg v. Gingles, 478 U.S. 30 (1986) If all three conditions are met, the court then examines the totality of circumstances, including the jurisdiction’s history of discrimination, to decide whether the map violates Section 2. Meeting the Gingles test does not guarantee a new map, but failing it almost certainly ends the challenge, and redistricting cases often take years to resolve while elections continue under the disputed maps.
Felony Disenfranchisement
Felony disenfranchisement strips voting rights from people with criminal convictions, and its impact falls disproportionately on Black Americans. Roughly one in 16 Black adults of voting age is disenfranchised due to a felony conviction, a rate nearly four times higher than the non-Black population. In Richardson v. Ramirez, the Supreme Court held that states have constitutional authority to disenfranchise people convicted of felonies, finding that Section 2 of the Fourteenth Amendment specifically contemplates this power by exempting felon disenfranchisement from the penalty of reduced congressional representation.18Justia. Richardson v. Ramirez, 418 U.S. 24 (1974)
State laws vary widely. A few states allow people to vote even while incarcerated. Others restore voting rights automatically after release from prison, or after completion of probation and parole. The most restrictive states require a formal application, a waiting period, or a pardon from a state board. Some states tie restoration to full payment of court-ordered fines, fees, and restitution, which can run from hundreds to thousands of dollars. When a person cannot afford those payments, the financial requirement can keep them off the voter rolls indefinitely. Given the racial disparities in the criminal justice system, these financial requirements disproportionately affect Black communities and have drawn legal challenges arguing they amount to an unconstitutional wealth-based restriction on voting.
Pending Federal Legislation
Congress has considered but not passed legislation aimed at restoring the federal oversight lost after Shelby County. The John R. Lewis Voting Rights Advancement Act would create an updated coverage formula based on a rolling review of voting rights violations over the preceding 25 years rather than the decades-old benchmarks the Court struck down. The Freedom to Vote Act would set national baselines for voting access, including at least two weeks of early voting with evening and weekend hours, no-excuse mail-in voting for all eligible voters, and protections against discarding ballots for minor errors like a missing outer envelope. Neither bill has become law. Until that changes, the enforcement landscape is defined by Section 2 litigation and the higher burden set by Brnovich.