The case seemingly involves only two policies in a single state, Arizona. One disqualifies the ballots of voters who improperly vote in a precinct that is not their own. Another prohibits people from gathering voters’ mail-in ballots and returning them to election officials. Democrats are challenging these laws under the Voting Rights Act’s Section 2, which bars election processes 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.” The Democrats argue, for example, that much of Arizona’s Native American population lacks regular mail service, making the ban on people collecting mail-in ballots far more burdensome on them than on other groups.
But what happens to these two laws is far less important than how the court interprets Section 2’s words for use in future cases — cases that a decade ago would likely have been covered by Section 5, the portion of the Voting Rights Act that the justices gutted in 2013. After their handiwork, Section 2’s wording suddenly became far more important to protecting minority voting rights.
An interpretation that sets an extremely high standard to invalidate election laws under Section 2 would give the states free rein. The Democrats argue that voting rules that disproportionately affect minority groups, particularly when those rules interact with adverse social and historical conditions affecting them, must be struck down. Otherwise, even the literacy tests of the Jim Crow era might be legal again.
On the other hand, Republicans warn that if the court set a lower standard, the justices would subject practically any voting rule to potential litigation. They offer a variety of tougher alternatives, which would make challenges to many election laws difficult or, as in the standard suggested by the Arizona Republican Party, practically impossible.
Many of the justices on Tuesday appeared skeptical of both sides, but left open the question of where between the two poles the majority will meet.
The justices must squarely face the menace that the manipulation of election rules poses to U.S. democracy. Rather than make their candidates or policies more appealing, Republicans have chosen a strategy of turning out their voters while keeping the Democrats’ voters at home with policies that disproportionately burden minority voters. Ostensibly race-neutral, these policies often piggyback on persistent racial inequalities to produce a predictable imbalance in burden. Battling practically nonexistent fraud is their justification. The court must not let the Voting Rights Act crumble under such pretext, nor excuse and tolerate the disproportionate burdens that Republicans seek to impose on minority voters.