Toobin: Voting Rights Act close to being irrelevant
By Ariane de Vogue, Fredreka Schouten and Chandelis Duster, CNN
The Supreme Court on Thursday said two provisions of an Arizona voting law that restrict how ballots can be cast do not violate the historic Voting Rights Act that bars regulations that result in racial discrimination.
The ruling will limit the ability of minorities to challenge state laws in the future that they say are discriminatory under the Voting Rights Act.
The vote in the case is 6-3 breaking along conservative-liberal ideological lines. Justice Samuel Alito delivered the majority opinion.
The case comes as several Republican-led states, encouraged by former President Donald Trump’s unfounded claims of widespread voter fraud, are considering more restrictive laws and Democrats are fighting a frantic battle in courts to combat what President Joe Biden has called an “assault on democracy.”
The court upheld two provisions of the Arizona law. The first provision says in-person ballots cast at the wrong precinct on Election Day must be wholly discarded. Another provision restricts a practice known as “ballot collection,” requiring that only family caregivers, mail carriers and election officials can deliver another person’s completed ballot to a polling place.
“Neither Arizona’s out-of-precinct rule nor its ballot-collection law violates §2 of the VRA,” Alito wrote. “Arizona’s out-of-precinct rule enforces the requirement that voters who choose to vote in person on election day must do so in their assigned precincts. Having to identify one’s own polling place and then travel there to vote does not exceed the “usual burdens of voting.'”
Alito said that while the Voting Rights Act provides “vital protection against discriminatory voting rules, and no one suggests that discrimination in voting has been extirpated or that the threat has been eliminated … Section Two of the law does not deprive the States of their authority to establish non-discriminatory voting rules.” And touching on arguments made by Republicans and Trump, Alito said that “one strong an entirely legitimate state interest is the prevention of fraud.”
“Fraud can affect the outcome of a close election, and fraudulent votes dilute the right of citizens to cast ballots that carry appropriate weight” Alito wrote, adding that fraud can “also undermine public confidence in the fairness of elections and the perceived legitimacy of the announced outcome.”
Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law, said the high court’s decision on Thursday regarding voting rights and invalidating a California rule that requires charitable organizations that solicit donations to disclose a list of their contributors to the state attorney general, shows “full flavor” of the court’s new conservative majority.
“In narrowing the Voting Rights Act and striking down California’s donor disclosure rules, the Court is handing two major legal and political victories to Republicans — decisions that likely would not have been possible as recently as three years ago. One has to assume that it is a distinct and undeniable harbinger of things to come,” Vladeck said Thursday.
Justice Elena Kagan, writing for her two liberal colleagues, Justice Stephen Breyer and Sonia Sotomayor, accused the majority of trying to rewrite the law.
“No matter what Congress wanted, the majority has other ideas,” Kagan wrote, saying the court “has no right to remake Section 2” — only Congress does.
“The law that 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,” Kagan said, “deserves the sweep and power Congress gave it.”
“That law, of all laws, should not be diminished by this Court, ” she added.
History of Arizona lawsuit
The 9th US Circuit Court of Appeals had invalidated both Arizona provisions under Section 2 of the Voting Rights Act, stressing the state’s “long history of race-based discrimination against its American Indian, Hispanic, and African American citizens” and highlighting a “pattern of discrimination against minority voters has continued to the present day.”
While the Democratic National Committee urged the justices to affirm the ruling, Arizona’s attorney general, the state Republican Party and the former Trump Justice Department told the court to reverse a lower court, uphold the provisions and establish legal a standard that could make it more difficult to bring claims under the Voting Rights Act in the future.
Arizona Attorney General Mark Brnovich, a Republican, told the justices that the voting rules represent “appropriate election integrity measures that do not create any disparate impact on racial minorities, but serve us all equally well.”
“Arizona endorses without qualification the Voting Rights Act goal of ending racial discrimination in voting,” he told the justices, and added that claims demonstrating that the law disparately impacts minovery voters can go forward. Absent such a showing, he said, “Section 2 would exceed Congress’s powers to enforce the Reconstruction amendments, improperly inject race into all voting laws, and impede a state’s ability to run their elections.”
Michael Carvin, a lawyer for the state GOP, took a harder line. He asked the justices to hold that no challenges that concern neutral “time, manner, or place” restrictions could be brought under Section 2. That could help greenlight many of the laws that are currently being passed in states like Texas and Georgia.
Texas, for instance, is pushing for a ban on after-hours voting, and a mandate to limit Sunday early voting as well as requiring voters requesting absentee ballots to provide their driver’s license number or Social Security number.
For its part, the Biden administration filed a letter with the court agreeing that the two Arizona provisions did not violate the Voting Rights Act, but disagreed with the suggestion to limit future claims under the law.
In court, Bruce Spiva, a lawyer for the DNC, reminded the justices that “voting discrimination still exists, no one doubts this.” He said that minorities were twice as likely to be impacted by the out-ofprecinct law in part due to confusing placement of polling places and that the ballot collection law impacted Native Americans and Hispanic who depended upon it to cast absentee ballots.
“More voting restrictions have been enacted over the last decade than at any point since the end of Jim Crow,” Spiva said, adding that “the last three months have seen an even greater uptick in proposed voting restrictions, many aimed squarely at the minority groups whose participation Congress intended to protect.”
Thursday NAACP President Derrick Johnson said the ruling was a “frontal attack on democracy”.
“The Court sent the clear message that vote suppressors around the country will go unchecked as they enact voting restrictions that disproportionately impact voters of color,” Johnson said.
Reliance on Section 2
Eight years ago, Chief Justice John Roberts wrote the 5-4 majority opinion in Shelby County v. Holder, effectively gutting Section 5 of the Voting Rights Act, a provision that required states with a history of discrimination to obtain the permission of the federal government or the courts — known as “pre-clearance” — before enacting new laws related to voting.
The justices struck down the provision of the law that determined which states would be covered, leaving it to Congress to update the formula. Congress has yet to act. Since then, challengers to voting rules had turned to Section 2 of the law that bars laws that result in discrimination. That section only allows lawsuits after the restriction has gone into effect.
In the years since, states once covered by those pre-clearance provisions have made far-reaching changes to their voting rules. They include Arizona, which in 2016, passed its law restricting who can return a ballot on behalf of a voter.
The court’s Arizona decision is considered crucial to the ongoing battles over voting rights because Section 2 of the Voting Rights Act is one of the few legal tools remaining to counteract laws viewed as disenfranchising Black and other minority voters.
The US Justice Department is relying on Section 2 to sue the state of Georgia over the raft of voting restrictions the GOP-controlled legislature enacted this year. Those new provisions, which include discarding most out-of-precinct votes and restricting ballot box locations, were passed with the intent “to deny or abridge the right of Black Georgians to vote on account of race or color,” the DOJ alleged.
Other groups suing to stop restrictive laws from taking effect in Georgia and other states also have centered their complaints, at least on part, on Section 2’s anti-discrimination provisions.
Georgia Secretary of State Brad Raffensperger applauded the ruling Thursday and said the Justice Department should “heed this decision and dismiss their wrong, politically motivated lawsuit against Georgia.”
This year has brought a wave of new laws restricting access to the ballot. Republican sponsors — spurred on by Trump’s baseless fraud claims — say the new measures are needed to prevent wrongdoing and restore confidence in a voting system that saw record numbers of Americans cast their ballots by mail and other avenues of voting that opened up during the coronavirus pandemic.
Democrats and voting rights advocates say the laws aim to discourage voting, particularly by minorities, college students and people with disabilities.
In all, 17 states have enacted 28 new laws restricting voting as of June 21, according to the liberal-leaning Brennan Center for Justice.
Sean Morales-Doyle, acting director of the voting rights and elections program at the Brennan Center, decried Thursday’s ruling.
“Today the Supreme Court made it much harder to challenge discriminatory voting laws in court. The justices stopped short of eviscerating the Voting Rights Act, but nevertheless did significant damage to this vital civil rights law and to the freedom to vote,” he said.
More limits could be on the way.
In July, Republicans in the Texas legislature head into a special session where they are likely to revive some of the nation’s most restrictive voting limits. The proposals in Texas could impose limits on absentee voting, grant new powers to partisan poll watches and take aim at new voting methods — such as drive-through and 24-hour voting — deployed in populous Harris County, home to Houston, last year.
Democrats in Congress are working on a new version of the Voting Rights Act that tries to restore federal government’s ability to pre-approve changes to voting practices in some states. Republican opposition to the legislation, however, makes that update unlikely to pass in an 50-50 Senate unless moderate Democrats agree to dismantle the 60-vote threshold needed to overcome a filibuster in the Senate to advance legislation.
This story has been updated.
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