A police barricade in front of the U.S. Supreme Court in Washington, D.C., on Monday, Dec. 7, 2020.
Al Drago | Bloomberg | Getty Images
The Voting Rights Act was ushered through Congress in 1965 in order to protect the right to vote for Black people and other minority groups who had been systematically excluded from the U.S. political system in the centuries beforehand.
On Tuesday, as Republican lawmakers push to pass laws around the country that could make it harder for minority groups to vote, the Supreme Court will hear arguments in a major case over the landmark 1960s legislation that may give the new bills a better shot at standing up against legal challenges.
In Brnovich v. Democratic National Committee, No. 19-1257, the justices will hear a 2016 case over voting rules in Arizona that poses questions at the heart of the current debate that gripped the country in the wake of the presidential contest between President Joe Biden and former President Donald Trump.
The court will consider the sweep of Section 2 of the Voting Rights Act, which forbids states from making laws that restrict citizens’ ability to vote on account of their race. The law specifies that a state can violate Section 2 if elections are not “equally open” to minority groups and the rest of the electorate based on the “totality of circumstances.”
Mark Brnovich, the Republican attorney general of Arizona, and conservative organizations are pushing the court to use the case to narrow Section 2’s protections. On the other hand, the DNC and civil rights groups are pushing the justices to read the law more broadly.
The case comes amid a flurry of elections-related lawmaking at the state level. Republicans, furious with Trump’s loss in November and energized by his false claims of widespread voter fraud, have moved to introduce dozens of bills in statehouses that would tighten restrictions on voting.
So far in 2021, there have been more than 250 bills that contain provisions restricting voting access advanced in 43 states, according to a tracker maintained by The Brennan Center for Justice at NYU Law.
The two Arizona measures being challenged resemble legislation that already exists in dozens of states. The first is a policy that bars voters from casting ballots on Election Day outside of their assigned precincts. The second is a law that clamps down on third-party ballot collection, which Republicans derisively call ballot harvesting.
The Democratic National Committee challenged both measures in 2016, alleging that they disproportionately affected Hispanic, Native American and Black people. In addition, the DNC said that the ballot harvesting measure was specifically intended to suppress the vote of Hispanic and Native American voters.
The DNC lost before a district court but ultimately succeeded before the full 9th U.S. Circuit Court of Appeals.
The appeals court ruled that both Arizona measures failed the “results test” — meaning that the laws had the result of suppressing minority access to the polls. It also found that the ballot collection provision failed the “intent test,” meaning it was enacted with the intent to discriminate. Both tests came from a 1986 Supreme Court case known as Thornburg v. Gingles.
The 9th Circuit cited figures showing that minority voters were twice as likely to have their vote discarded as a result of the policy against counting ballots cast in the wrong precinct.
It said that minority voters were also particularly reliant on third-party ballot collection and that there was “no evidence of any fraud in the long history of third-party ballot collection in Arizona.”
The appeals court noted that the Republican legislators who voted in favor of the ballot collection ban were motivated by false allegations of voter fraud and a “racially tinged” video produced by Maricopa County Republican Chair A.J. LaFaro that showed an apparently Hispanic man dropping off ballots while a narrator calls the person a “thug” and speculates that he may be an “illegal alien.”
Both sides of the case acknowledge that it could have consequences that reach beyond Arizona.
In an April filing with the top court, Brnovich urged the justices to review the case, warning that the 9th Circuit’s reasoning would threaten not only the laws in question but also “a host of other sensible election laws.”
In a statement issued this week, Brnovich said that the case was “about protecting the franchise, not disenfranchising anyone.”
“I think part of the lesson of 2020 was that when people don’t believe that elections have integrity or that their vote is being protected, it will lead to undermining the public’s confidence in the system,” he said.
Civil rights groups are alarmed that the Supreme Court, with six Republican appointees, may be poised to go beyond just siding against the DNC and issue a broad ruling limiting the scope of Section 2 of the Voting Rights Act.
“As we are facing this wave of restrictive legislation, certainly we fear the possibility of new discriminatory policies going on the books, and we will have to rely on the Voting Rights Act,” said Sean Morales-Doyle, deputy director of the voting rights and elections program at the Brennan Center.
“Any limitation to Section 2 would really make it harder to push back against discriminatory policies,” he said.
Section 2 has taken on more importance in recent years as a result of the court’s weakening of Section 5 of the Voting Rights Act in 2013. While Section 5 required some states and localities with histories of discrimination to receive federal approval before they implemented new voting laws, Section 2 only allows for challenges to laws once they are in force.
In Shelby County v. Holder, the top court ruled 5-4 to invalidate the formula that identified which states and counties were required to receive federal clearance before enacting new voting laws. Congress has not set a new formula in the time since, meaning that the preclearance requirement has been effectively out of action.
Kathleen Hartnett, an attorney for the NAACP and the Lawyers’ Committee for Civil Rights Under Law, wrote in a friend-of-the-court brief that following the court’s ruling in Shelby County, Section 2 has become “even more indispensable.”
The late Justice Ruth Bader Ginsburg, in a dissent in Shelby County, warned that Section 2 protections were not as strong as the Section 5 preclearance rules the court was invalidating.
“Litigation occurs only after the fact, when the illegal voting scheme has already been put in place and individuals have been elected pursuant to it, thereby gaining the advantages of incumbency,” Ginsburg wrote.
She added that litigation placed a heavy financial burden on minority communities seeking to defend their rights, and the relevant evidence needed to bring a case could take years — and multiple election cycles — to develop.
The Arizona case contains an illustration of the strength of Section 5. While preclearance was in effect, in 2011, Arizona tried to get its ban on third-party ballot collection approved. But after the Justice Department asked for more data to determine if the law was discriminatory, Arizona withdrew its request, the DNC notes in one of its filings.
Ahead of arguments, it’s not clear how the justices will ultimately rule in the case. It would be possible for the court to rule in favor of Arizona, upholding its election laws, without revisiting the strength of Section 2.
That tack is effectively what the Department of Justice under Biden took when it reversed the stance the department had taken under Trump, which strongly supported Brnovich.
In a letter last month, Edwin Kneedler, the deputy solicitor general, wrote that the department had carried out a review of its previous stance.
Kneedler wrote that the department continued to believe that the challenged measures didn’t run afoul of the Voting Rights Act. But, he added that the DOJ did not agree to the “framework for application of Section 2 in vote-denial cases” presented by Brnovich.
The Brennan Center’s Morales-Doyle said that the chief concern among voting rights groups was that the court would agree with Brnovich and other conservatives who filed briefs asking the court to “limit how much courts can take into account the reality of the way that race works in the world” when reviewing Section 2 cases.
Race, he said, “runs throughout all these other aspects of life, so it’s important for courts to be able to take it into account.”
A decision in the case is expected by the end of June.
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