In short, in the face of record turnout in the 2020 elections, there are any number of initiatives underway that would make it more difficult to vote — and that would pose particular hurdles for voters of color. Meanwhile, and ominously, the Supreme Court is poised to take up a case that could neuter the remaining key provision of the Voting Rights Act that might be used to strike down these restrictions.
The Supreme Court eviscerated the Voting Rights Act in its 2013 ruling in Shelby County v. Holder. That 5-to-4 decision gutted a key provision, known as Section 5, which required certain states and localities with a history of discrimination to obtain approval from the Justice Department before changing voting procedures. In the aftermath of Shelby County, states raced to enact voter ID laws, purge voter rolls, curtail early voting and impose other restrictions.
The demise of Section 5 left voting rights advocates with one other part of the law, Section 2, which doesn’t prevent the changes from being made in advance but — at least in theory — prohibits voting practices that abridge minority voting rights.
In a 1980 ruling, the court adopted a grudging interpretation of Section 2, saying it required a showing of “discriminatory purpose.” Two years later, Congress amended the law to underscore that the provision applied to any practice that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.”
On Tuesday, in Brnovich v. Democratic National Committee, the Supreme Court will hear oral arguments about two voting restrictions from Arizona. The first is a state policy that requires the entire ballot to be thrown out if a vote is cast in the wrong precinct — even if the voter was legally entitled to cast some of the votes, say for federal or statewide office. The second is a law that makes it a crime for most third parties to collect and deliver ballots, a practice attacked by Republicans as “ballot harvesting,” and which they argue poses a risk of voter fraud.
The Democratic National Committee, which challenged both restrictions, contends that they have the effect of disenfranchising voters of color. Citing Arizona’s “long history of racial discrimination and its continuing effects,” the DNC argues that minority voters move more frequently and are twice as likely as White voters to have their ballots rejected because of voting in the wrong precinct.
And while a majority of Arizona voters cast their ballots by mail, voting by mail poses a particular challenge for the state’s Native American population, only 18 percent of whom have access to regular mail service. “Simply put, Arizona’s ballot collection ban has never been anything other than a racially-charged tool to suppress minority votes,” the DNC argues.
The district court and a federal appeals court panel rejected the DNC’s claims, but the en banc 9th Circuit reversed.
What’s important in the case is not so much how the justices decide on the out-of-precinct and ballot collection rules. Indeed, the Biden Justice Department advised the court in a Feb. 16 letter that it “does not disagree” with the Trump administration’s conclusions that the Arizona provisions did not violate Section 2.
Rather, the significance of the case will be in what standard the court adopts for how to apply Section 2 — which has been most often interpreted in the context of racial gerrymandering — to claims of discriminatory voting practices. This will be the justices’ first look at how Section 2 applies to such restrictions.
But more of these laws are coming — and the distinction between a legitimate state attempt to set electoral rules and a restriction that has the effect of disproportionately lessening minority voters’ ability to participate in the political process is fact-specific and often difficult to discern. How severe does the impact on minority voters have to be? Should courts look at the impact of the challenged provision alone, or at the totality of the state’s voting system and its fairness to minority voters? Does Section 2 even apply to race-neutral “time, place and manner” voting rules?
There’s ample reason to be nervous about whether the court’s newly bolstered conservative majority will apply a stingy reading of Section 2. The most moderate member of the conservative bloc, Chief Justice John G. Roberts Jr., was the author of the Shelby County ruling. Roberts and his conservative colleagues are inclined to be more deferential to states’ authority to regulate their own elections than to claims of discriminatory impact.
Section 2, the NAACP argues in a friend-of-the-court brief, has become “the primary line of defense against both overt and subtle racial discrimination in voting.” Brnovich v. Democratic National Committee may show just how strong or weak that defensive line will be.