The case involves a pair of voting restrictions from Arizona (disallowing provisional ballots cast outside the correct precinct, and limiting who can help return a completed ballot), which the U.S. Court of Appeals for the 9th Circuit struck down for violating Section 2 of the Voting Rights Act. Among voting-rights groups, it is widely agreed that the 9th Circuit misapplied existing law and that these two particular voting restrictions do not violate Section 2. The fear, however, is that the Supreme Court will issue a sweeping opinion not only overturning the 9th Circuit but drastically curtailing the circumstances under which Section 2 could be used.
During the previous administration, the Justice Department argued that the 9th Circuit was wrong, but raised a much wider argument that the Supreme Court should disallow Section 2 claims unless a plaintiff could prove intent to discriminate. As voting-rights groups pointed out, this would overlook an entire body of precedent that allows courts to strike down voting mechanisms that result, within the context of other factors, in a disparate impact on minority voters. As the NAACP wrote in an amicus brief: “For decades, this Court has also accepted that actions of the government defendant — either in passing and implementing the challenged voting rule or in historical acts of discrimination — is not to be considered in a vacuum and is not itself dispositive of the Section 2 inquiry.”
When the Biden administration took office, the deadline both for filing briefs in support of the challengers and requesting time for argument had effectively passed. The Biden Justice Department made a calculated decision not to depart from the view that the 9th Circuit got it wrong. (Cutting one’s losses in a case unlikely to succeed is often critical to preserving long-term interests.) It also took the unprecedented step of not reserving time to defend the position taken by the Trump administration’s Supreme Court brief. This was a flashing sign to the court: We cannot defend this.
In a letter to the Supreme Court — an extraordinary measure given that briefs were already filed — the Justice Department in February explained that it was not reversing the position that the 9th Circuit got it wrong. But it also made clear it did not agree with the Trump administration’s attempt to essentially eviscerate the court’s “results” test for Section 2 cases. As the NAACP explains in its brief, that test requires plaintiffs to show that “(1) the challenged policy imposes a discriminatory burden on people of color, meaning that they ‘have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice’ . . . and (2) that burden ‘must in part be caused by or linked to “social and historical conditions” that have or currently produce discrimination against members of the protected class.’ ” Doing away with the results test would require the Justice Department to prove intent in all these cases.
Meanwhile, the Biden Justice Department filed its first Section 2 case against Georgia for its new voting restrictions passed under the false premise that the 2020 election was “stolen” and was rife with fraud. Former federal prosecutor Joyce White Vance, writing for The Post, explains:
Given the conservative bent of the court, there are concerns it will create a more rigorous standard for Section 2 challengers to meet than the “results test” that the U.S. Court of Appeals for the 9th Circuit used to invalidate two restrictive Arizona provisions. The results test requires plaintiffs to establish that the challenged provision has a discriminatory impact on minorities, which is explained by the jurisdiction’s history of discrimination. In Brnovich, the court could replace this discriminatory impact test with a more stringent one that requires proof of intentional discrimination to invalidate a new law. The Justice Department, pointedly, accuses the Georgia legislature of intentional discrimination against minority voters.
In other words, the Justice Department “Brnovich-proofed” its case so that the lawsuit would survive in the worst-case scenario, namely a Supreme Court ruling that dramatically limited the results test. If the Supreme Court leaves the results test largely intact, expect the Justice Department to file an amended complaint to plead a results claim, as well.
If not for the timing of the new administration, I am confident the Biden Justice Department would have fully briefed the case to attack the Republicans’ overreaching attempt to demolish Section 2. If not for Brnovich, the pleading in Georgia case would almost certainly have included a results claim. Nevertheless, the Biden Justice Department has done what is needed to try to salvage a bad situation.
If the worst comes to pass on Thursday, and the court dramatically limits Section 2, the Georgia case will still go forward and cases in other states may still be filed using an “intent” theory. That would make litigation much more difficult. As such, it would strengthen the necessity for Congress to revive the preclearance provisions in Section 5 of the Voting Rights Act (as the John Lewis Voting Rights Advancement Act would do). That would give the Justice Department more tools to fight voter suppression.
In sum, there is a three-front war going on to try to protect the fundamental right to vote. First, the administration is struggling to preserve Section 2 to the greatest degree possible. Second, it seeks to use Section 2 (or what will be left of it after Thursday’s decision) where possible to push back against attacks on voting. And third, it must figure out whether some version of H.R.1 or H.R. 4 can pass to empower the Justice Department to fight Jim Crow-style laws popping up around the country.
That is a tall order. The good news is that the Justice Department now has Kristen Clarke as head of its civil rights division and Vanita Gupta in the department’s No. 3 spot — two of the best voting rights minds around. Perhaps that explains why Republicans ran a smear campaign trying to keep them from taking their posts. The good news is that those smears failed, so the administration now has a fighting chance to marshal a defense of voting rights.