Nina Totenberg
Maricopa County, Ariz., elections officials count ballots on Nov. 4 in Phoenix. Eight years after carving the heart out of a landmark voting rights law, the U.S. Supreme Court put new limits on efforts to combat racial discrimination in voting. Matt York/AP hide caption
Maricopa County, Ariz., elections officials count ballots on Nov. 4 in Phoenix. Eight years after carving the heart out of a landmark voting rights law, the U.S. Supreme Court put new limits on efforts to combat racial discrimination in voting.
The U.S. Supreme Court Thursday gutted most of what remains of the landmark Voting Rights Act. The court’s decision, while leaving some protections involving redistricting in place, left close to a dead letter the law once hailed as the most effective civil rights legislation in the nation’s history.
The 6-3 vote was along ideological lines, with Justice Samuel Alito writing the decision for the court’s conservative majority, and the liberals in angry dissent.
At issue in the case were two Arizona laws: one banned the collection of absentee ballots by anyone other than a relative or caregiver, and the other threw out any ballots cast in the wrong precinct. A federal appeals court struck down both provisions, ruling that they had an unequal impact on minority voters and that there was no evidence of fraud that would have justified their use.
But on Thursday, the Supreme Court reinstated the state laws, declaring that unequal impact on minorities in this context was relatively minor, that other states have similar laws and that states don’t have to wait for fraud to occur before enacting laws to prevent it.
Just because voting may be “inconvenient for some,” Alito wrote, doesn’t mean that access to voting is unequal. In evaluating what the Voting Rights Act requires, said Alito, courts should look to what the voting rules were in 1982, when the relevant provision of the law was enacted. Back then, he observed, almost all voting was in person and on Election Day. And “the mere fact that there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote.”
“Justice Alito was trying to turn back the clock on voting rights many decades,” said Richard Hasen, a leading expert on voting rights and law professor at University of California Irvine. “I think it’s fair to say that all of the major paths to challenging voting rules in federal court have been severely cut back.”
Election law expert Richard Pildes, of NYU Law School added that the court could have upheld the Arizona laws in a narrow way, as the Biden administration had suggested, but the conservative court majority swung for the fences. In his majority opinion, Justice Alito wrote that laws likely do not violate the law when they are like laws that existed forty years ago or like laws that exist today in many states.
But, Pildes said, access to the ballot has expanded in recent decades.
“Very early voting began in the mid-2000s, and the move to no-excuse absentee balloting began kind of earlier than that,” said Pildes. “That’s a very significant development that’s really made the process much more accessible to more people.”
Writing the dissent, Justice Elena Kagan accused the majority of “yet again” rewriting the Voting Right Act, a law, she noted, was designed to bring about “the end of discrimination in voting.”
“Never before has a statute done more to advance the nation’s highest ideals,” she said. “Few laws are more vital in the current moment. Yet in the last decade this Court has treated no statute worse.”
The Voting Rights Act “confronted one of this country’s most enduring wrongs; pledged to give every American, of every race, an equal chance to participate in our democracy,” wrote Kagan. “That law, of all laws, should not be diminished by this court.”
The landmark law, widely hailed as the most effective piece of civil rights legislation in the nation’s history, was reauthorized five times after its original passage in 1965, but for all practical purposes, all that is left of it now is the section banning vote dilution in redistricting based on race, and the ban on intentional discrimination, which generally applies to only the most egregious forms of discrimination.
Eight years ago, the court by a 5-4 majority gutted the law’s key provision, which until then required state and local governments with a history of racial discrimination in voting to get federal approval prior to making any changes in voting procedures.
When that provision was struck down by the court in 2013, the only protections for voting rights that remained in the law were in Section 2.
Though Section 2 has largely been used to prevent minority vote dilution in redistricting, importantly, it does bar voting procedures that “result in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” So the Arizona case was viewed as particularly important because it was the first time the court dealt with a claim of vote denial under Section 2 and how to evaluate it.
“This Court has no right to remake Section 2,” Kagan wrote in her dissent. “Maybe some think that vote suppression is a relic of history — and so the need for a potent Section 2 has come and gone … But Congress gets to make that call.”
Arizona Republicans and the Republican National Committee argued that both laws were needed to prevent fraud. But the 9th U.S. Circuit Court of Appeals ruled that there was no record of fraud and that there was evidence these two provisions ended up denying many minorities the right to vote. The appeals court noted, for instance, that ballot collectors were needed in some large, rural and remote parts of the state. It pointed, for instance to the Navajo Nation, an area the size of West Virginia, where there are few post offices or postal routes, and where people without cars often have no way to send their ballots without collectors picking them up.
The high court, however, rejected the lower court findings — and reaction to Thursday’s opinion was along partisan lines.
President Biden, in a statement, said he was “deeply disappointed in today’s decision by the United States Supreme Court that undercuts the Voting Rights Act.”
“After all we have been through to deliver the promise of this Nation to all Americans, we should be fully enforcing voting rights laws, not weakening them,” he said. “Yet this decision comes just over a week after Senate Republicans blocked even a debate – even consideration – of the For the People Act that would have protected the right to vote from action by Republican legislators in states across the country.”
The ruling will now add pressure on Democrats in the Senate to try to find a way to enact a new voting rights law.
“This decision,” said Debo Adegbile, a longtime civil rights lawyer, “makes a powerful argument that Congress must use the full force of its powers to protect minority voters and keep the path to the ballot box open.”
But voting rights advocates are caught between a Supreme Court hostile to voting rights and a Republican party that has abandoned its one-time support for voting rights. “We’ve seen a sea change in the Republican Party’s attitude towards the Voting Rights Act,” said professor Hasen. “As the Republican party becomes more reliant on white voters, it has less of an incentive to support any renewed voting rights protections.”
Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund, said on Twitter: “We are fighting against the most concerted state-based effort to undermine Black voting strength since the Civil Rights Mvmt. And in that context, the Supreme Court has again, & w/abandon, shredded a core provision of the Voting Rights Act.”
Arizona Attorney General Mark Brnovich, who defended the state law, said on Twitter, “I am thankful the justices upheld states’ ability to pass and maintain commonsense election laws, at a time when our country needs it most.”
Arizona, of course, has been ground zero for former President Donald Trump’s claims that the election was stolen, and a Trump-inspired audit has taken place there. The attempt to undo the certification of the election results has been widely discredited, even by some Republican officials, and is meaningless because the state’s electoral votes were long ago certified for Biden.
The court’s decision could play an important role in next year’s midterm elections and elections thereafter.
Many Republican-dominated states have passed laws far more problematic than the two at stake in Arizona.
Indeed, the U.S. Justice Department, in a statement, said: “The department remains strongly committed to challenging discriminatory election laws and will continue to use every legal tool available to protect all qualified Americans seeking to participate in the electoral process. The department urges Congress to enact additional legislation to provide more effective protection for every American’s right to vote.”
Thursday’s decision complicates the department’s decision to sue the state of Georgia over its new voting law, alleging that the measure is intended to restrict ballot access to Black voters.
The two laws at the center of Thursday’s case are not unusual. Other states have enacted limits on absentee ballot collectors, especially when fraudulent practices have been uncovered. Although the 9th Circuit found no evidence of fraud in the Arizona election system, problems with absentee ballot collection systems have occurred elsewhere. Perhaps the most prominent example came in 2018 in North Carolina when a Republican vote collection and tampering scandal resulted in a new congressional election being ordered for one district.
In the wake of Trump’s false allegations that Democrats stole the 2020 election, many states, particularly those controlled by Republicans, have sought to change voting laws in a way that critics say is aimed at curtailing the right to vote, particularly among minorities. Last month, the Brennan Center for Justice reported that 22 new voting laws had been enacted and 389 proposed in 48 states just since the 2020 election.
The U.S. House of Representatives passed a bill, H.R.1, that would have set federal standards and overridden voter suppression provisions across the country, but in the Senate, opponents blocked consideration of the bill.
The laws that the court ruled on Thursday are not unique, and some Democrats consequently thought that challenging them risked a decision that would make it harder to challenge other restrictions in the future. But former Democratic Party Chairman Tom Perez maintained that the situation in Arizona was different because of the huge rural areas without Postal Service.
At the same time, GOP lawyers defending the laws candidly admitted during the oral argument in the case that the Republican Legislature’s motive in enacting the Arizona voting restrictions was less anti-fraud and more political.
Not having such restrictions “puts us at a competitive disadvantage,” lawyer Michael Carvin said on behalf of the GOP. “Politics is a zero-sum game, and every law they get through an unlawful interpretations of Section 2 hurts us.”
Still, the court’s decision is likely to increase pressure further on Biden and congressional Democrats to pass voting reform legislation. Those efforts have stalled, both because of Republican opposition as well as a lack of support from Democratic Sen. Joe Manchin of West Virginia, who says he believes the legislation under consideration is far too sweeping. Manchin has proposed his own compromise version of the measure, but it’s unclear if he can get 10 Republicans to sign on to that proposal.
Under current rules, Democrats need all 50 of their own senators as well as 10 Republicans to pass the measure.
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