The United States Supreme Court will hear a case on Tuesday that may allow the conservative majority of the court to deal a major blow to the most powerful remaining provision of the Voting Rights Act, the 1965 law created to prevent racial discrimination in voting .
Sign up for the Guardian’s Fight to Vote newsletter
The case, Brnovich v Democratic National Committee, involves a dispute over two measures from Arizona. One is a 2016 law that prohibits anyone other than a close family member or caregiver from collecting absentee ballots, sometimes called vote collection. The second is a measure that requires officials to reject ballots thrown in the wrong constituency, even if the voter has voted in state disputes.
Arizona rejected more than 38,335 ballots thrown in the wrong constituency between 2008 and 2016 and minority voters were twice as likely as whites to have their ballots rejected, the DNC noted in its report. Minority voters, including the state’s Native American population, are disproportionately harmed by the ban on collecting votes because they are more likely to lack a reliable courier service.
The DNC argues that the policies violated section 2 of the Voting Rights Act, which prohibits voting laws that discriminate on the basis of race. A court ruled in 2018 that the policies did not violate the law, and a panel of three judges in the U.S. appeals court for the ninth circuit subsequently upheld that decision. But the entire circuit voted to rehearse the case and last year found that policies violated the Voting Rights Act. Now Arizona Attorney General Mark Brnovich, a Republican, and the Arizona Republican Party are appealing this decision to the U.S. Supreme Court.
And while the facts of the case are about Arizona, what is at stake can go far beyond that. Brnovich and the Republican Party of Arizona are asking the court to use the case as a vehicle to announce a narrower view of section 2 than the one currently in use.
Such a decision would take away one of the most powerful tools that voting rights groups have to challenge discriminatory electoral laws. Section 2 was elevated following the 2013 Supreme Court ruling in Shelby County v Holder that overturned another clause in the Voting Rights Act requiring certain places with a history of voting discrimination, including Arizona, to submit voting laws to the federal government. prior authorization before it came into force.
“Without pre-authorization on books, we all had to rely more heavily on section 2 to address racial discrimination in the vote,” said Sean Morales-Doyle, a lawyer at the Brennan Center for Justice who helped draft a petition of amicus in the case in support of the position of the DNC. “If section 2 is limited, we will have even fewer tools.”
The loss of all section 2 power would also make it more difficult for litigants, including the justice department, to challenge the wave of restrictive projects that bubbled up in Georgia and other state legislatures that would make it more difficult to vote, added Deuel Ross, a lawyer from the NAACP Legal Defense Fund (LDF), which also filed an amicus brief in support of the DNC.
The case comes to a supreme court where conservatives now have a powerful 6-3 majority that seems increasingly hostile to voting rights. She repeatedly refused to expand access to the polls during last year’s pandemic. And since its ruling in Shelby v Holder County, the court has given the go-ahead for aggressive voter purge and severe party gerrymandering.
Brnovich and the Republican Party of Arizona want the Supreme Court to clarify the approach that courts should take when assessing whether a law violates Section 2. Brnovich is also asking the Supreme Court to set a high standard for minority voters and their lawyers to clean up in order to prove that a law conflicts with section 2. Generally, he argues that the courts should use an approach to evaluate the claims in section 2 that would make it more difficult to challenge facially neutral measures, such as electoral identity laws, that do not explicitly make it more difficult for a specific group to vote. And if minority voters are able to prove that a law has a “substantially different impact” on them, argues Brnovich, they should be required to show that the disparity is directly linked to voting policy.
But discriminatory voting laws often don’t work that way. There is a long history in the US of using policies that, taken in a vacuum, appear racially neutral because they apply to everyone, but are designed to interact with economic, social and other factors to make voting difficult, LDF wrote in his amicus brief. Literacy tests and property requirements, the suppressive devices used in Jim Crow, applied to everyone, but made it difficult for black voters to register due to educational inequality and economic factors, the group noted.
“You are talking about two very specific voting laws that have a really obvious connection to the history of discrimination against indigenous, black and brown voters in this state,” said Allison Riggs, interim executive director at Southern Coalition for Social Justice, who presented an amicus brief in support of the position of the DNC. “Poverty, lack of transport, lack of access to flexible work and decent wages is the reason why voting outside the electoral zone is important and the collection of votes, especially in indigenous lands, is so important. “
One of the most interesting votes in the case will be that of Chief Justice John Roberts. When he wrote the Shelby opinion in 2013, he specifically pointed out section 2 as one of the most powerful tools still in place to combat electoral discrimination. But in 1982, then a young lawyer in the justice department, he defended strongly against expanding Section 2 and keeping it limited only to cases where there was evidence of intentional discrimination. Roberts ended up losing the argument.
Democrats argue in their statement that Arizona is proposing an “excessively narrow” way of looking at section 2. The ninth circuit, Democrats say, adequately analyzed the measures, finding that it disproportionately affected minority voters and worked in combination with the social and historical conditions in Arizona to make it more difficult for these voters to vote.
Richard Hasen, a law professor at the University of California, Irvine, noted in a blog last month that voting rights litigants generally hesitate to take Section 2 claims too far. The Democratic party, he wrote, did not seem to have that concern in this case, opening up an opportunity for Republicans to restrict the law.
“Section 2 did an important job of containing some of the worst forms of denial of vote in recent years, and it would be a shame if this exaggeration of a case ended up serving as the vehicle for eviscerating what remains of the movement’s crown jewel. civil rights, ”he wrote in a post on SCOTUSBlog.
In December, Donald Trump’s justice department filed an amicus brief in support of Brnovich and endorsing a narrower framework for interpreting section 2. But in February, the Biden government filed a letter with the court abandoning that position. The justice department said it still believes that Arizona’s measures do not violate the Voting Rights Act, but it no longer supports the framework for interpreting section 2 presented by the Trump administration.
There are several ways the court can choose to decide the case, without weakening the scope of section 2. Morales-Doyle, the lawyer for the Brennan Center, said he hoped the court would recognize the climate surrounding the elections and the race in which they were judging the case.
“There is a broad narrative about what is happening to our democracy and race in American society. The court is going to start weighing in now, ”he said. “I think our hope is that the court, instead, will see this as an opportunity to reaffirm the values and protections that we have in place for our democracy.”