WASHINGTON (AP) – Eight years after pulling the heart out of a historic voting rights law, the Supreme Court is trying to put new limits on efforts to combat racial discrimination in voting.
Judges are opening a case on Arizona’s restrictions on the collection of votes and another policy that penalizes voters who vote in the wrong electoral zone.
The high court’s consideration comes as Republican officials in the state and across the country proposed more than 150 measures, after last year’s elections, to restrict access to voting that, according to civil rights groups, would disproportionately affect black and Hispanic voters.
A broad Supreme Court decision would make it more difficult to fight these efforts in court. The discussion is scheduled for Tuesday by phone, because of the coronavirus pandemic.
“It would take away one of the great tools, in fact, the main tool we have now, to protect voters from racial discrimination,” said Myrna Perez, director of the Brennan Center for Voting Rights and Elections program.
Arizona Attorney General Mark Brnovich, a Republican, said the high court case is about electoral integrity, not discrimination. “It’s about protecting the franchise, not depriving anyone,” said Brnovich, who will defend the case on Tuesday.
President Joe Biden narrowly beat Arizona last year, and since 2018, the state has elected two Democratic senators.
Judges will be reviewing an appeals court decision against a 2016 Arizona law that limits who can return early ballots to someone else and against a separate state policy of discarding ballots if a voter goes to the wrong constituency.
The United States 9th Circuit Court of Appeals ruled that the polling law and state policy discriminate against minority voters, violating the federal Voting Rights Act and that the law also violates the Constitution.
The Voting Rights Act, first enacted in 1965, was extremely effective against discrimination at the polls because it forced state and local governments, with a history of discrimination, including Arizona, to obtain prior approval from the Department of Justice or a court before making any changes to the elections.
In 2013, the Supreme Court ruled 5-4 that the part of the law known as Section 5 could no longer be applied because the population formula for determining which states were covered had not been updated to take racial progress into account.
Congress “must identify the jurisdictions to be chosen on a basis that makes sense in light of current conditions,” wrote court president John Roberts by a conservative majority. “You can’t just trust the past.”
Democrats in Congress will again try to revive the early approval clause in the voting rights law. The John Lewis Advance Voting Bill failed at the last Congress, when Republicans controlled the Senate and President Donald Trump was in the White House.
But another part of the law, Section 2, applies across the country and still prohibits discrimination in voting based on race. Civil rights groups and voters who claim racial prejudice have to go to court and prove their arguments by showing intentional discrimination when passing a law or that the results of the law fall more heavily on minorities.
The new Supreme Court case concerns mainly how claimants can prove discrimination based on the results of the law.
The arguments are taking place in the context of the 2020 elections, in which there was a massive increase in early voting and ballots sent by post because of the pandemic. Trump and his Republican supporters challenged the election results by advancing allegations of fraud that were widely dismissed by state and federal courts.
But many Republicans continue to question the outcome of the election, despite the lack of evidence. Elected Republican Party officials responded by proposing to restrict early voting and ballots sent by post, as well as tighten voter identification laws.
Arizona’s contested provisions remained in effect in 2020 because the case was still pending in the courts.
But Brnovich said last year’s vote is another reason why judges should side with the state. “I think part of the lesson for 2020 was that when people don’t believe that elections have integrity or that their vote is being protected, it will undermine public confidence in the system,” said Brnovich.
Civil rights groups said the court should not use this case to hinder the eradication of racial discrimination, which “still poses a unique threat to our democracy,” as the NAACP Legal Defense and Education Fund said in a statement.
Nearly 75 companies, including PayPal, Levi Strauss and Impossible Foods, joined a petition urging the court to “fully preserve the Voting Rights Act”
The Justice Department will not be part of Tuesday’s arguments, a rarity in a case of voting rights.
The Trump administration supported Arizona. The Biden government, in a somewhat cryptic letter to the court, said this month that it believes that “none of Arizona’s measures violates the Section 2 results test”, but does not like the way its predecessor analyzed the issues.
The new administration’s suggestion could give the court a narrow way to defend Arizona’s provisions without making any significant changes to the electoral discrimination law.
The decision is expected in early summer.