States nationwide are about to make it harder to vote. Acting partly in response to widespread false allegations of fraud in the 2020 presidential election, state legislatures have introduced about 250 bills this year that would limit access to voting.
Since 1965, the Voting Rights Act has been the primary law used to combat racial discrimination in voting. Recently, the Supreme Court heard oral arguments in Brnovich v. Democratic National Committee. Its decision could seriously restrict what remains of the VRA. Here’s what you need to know.
There’s a long history behind the renewed efforts to restrict voting
The Constitution’s 14th and 15th amendments, ratified in the post-Civil War Reconstruction, ban racial discrimination in voting. Under Jim Crow, White Southern Democrats nevertheless stopped Black people from voting through violence and a variety of institutional mechanisms. Some laws, like literacy tests, led to what voting rights experts call “vote denial” by preventing or making it harder for Black citizens to vote.
Other laws resulted in “vote dilution” by weakening Black voting strength. A classic example is the at-large election system, in which city council members are elected by a citywide vote. In a city where the majority of voters are White and where voters of different races prefer different candidates, at-large elections ensure that White-majority-backed candidates always win, preventing minority-voter representation.
The VRA was written to respond to these diverse efforts to thwart minority voting rights. It banned specific vote-denial practices, such as literacy tests and poll taxes, and enabled the Justice Department to directly register voters.
The VRA also included more general protections. One is Section 2, the VRA’s nationwide ban on voting practices that result in “a denial or abridgment” of the right to vote based on race. Enforced by lawsuits challenging particular practices, Section 2 primarily has been used to challenge vote dilution, especially through at-large elections systems.
Better known is Section 5, in which Congress froze the voting procedures used by jurisdictions with histories of racial discrimination, primarily in the Deep South. If these places wanted to change how they conducted elections, they first needed “pre-clearance” by convincing the Justice Department that the change wouldn’t have racially discriminatory effects.
Note that Section 5 made states or localities demonstrate that changes wouldn’t harm minority voting rights, while Section 2 requires the challengers to show that practices have racially discriminatory effects. As a result, Section 2 lawsuits are complex, expensive and unpredictable, typically requiring detailed statistical analysis of local voting behavior and evidence about a location’s history and socioeconomic conditions.
Additionally, while Section 5 combated both vote dilution and vote denial, Section 2 has primarily been used in vote-dilution lawsuits.
Today, the VRA is mismatched to responding to vote-denial efforts
In 2013, the Supreme Court’s decision in Shelby County v. Holder effectively nullified Section 5, leaving Section 2 for preventing racial discrimination in voting.
But Section 2 is ill-suited for responding to what law professor Daniel Tokaji calls the “new vote denial,” because Section 2 is reactive and slower than Section 5.
Moreover, the legal framework for vote-denial cases under Section 2 is just emerging. That’s what the Supreme Court will decide in Brnovich: How should courts determine whether a practice denies votes in a way that violates Section 2?
At issue are two Arizona laws. The first requires officials to discard a voter’s entire ballot if he or she shows up to the wrong polling location on Election Day and thus submits a ballot outside of his or her assigned precinct. The second bans ballot collection by most third parties, preventing others from submitting your ballot for you.
The question in Brnovich: What evidence do plaintiffs need to prove a Section 2 violation?
Why might these laws violate Section 2? Both laws probably affect minority voters more than White voters. For example, the district court found that thousands of voters’ ballots were discarded for being cast at the wrong precinct each election cycle, with minority voters being twice as likely to be affected as White voters.
On the ballot-collection ban, the district court heard testimony estimating that ballot collectors delivered thousands of ballots, and that minority voters disproportionately rely on ballot collection to cast their votes. For example, the vast majority of votes in Arizona are cast via mail. But not every group has reliable home mail service: 86 percent of White registered voters outside of metropolitan Arizona do, while only 18 percent of Native Americans do. Without reliable home mail, these voters are more likely to vote by having someone gather and deliver their ballots to the nearest postal office.
The question in Brnovich is whether this evidence is enough to prove a Section 2 violation. After oral argument, it seems likely that at least six justices will vote to say it isn’t. Several justices signaled doubt about whether the laws are “substantial burdens” on people’s ability to vote. Others asked whether the challengers’ arguments could lead all election practices to violate Section 2. Three suggested they thought the ballot-collection ban could be justified as intending to prevent voter fraud.
The concerns about making “every voting rule vulnerable to attack under Section 2,” in Justice Samuel A. Alito Jr.’s words, suggest that the court will require challengers to at least show a substantial racially discriminatory impact. How it applies that standard will be crucial.
For example, showing that Native Americans are more likely than White people to rely on ballot collectors is one thing; showing that the ballot-collection ban actually stops them from voting is much harder, perhaps even impossible.
As states begin to tighten voting restrictions, Brnovich will shape whether the VRA can still protect racial minorities from discrimination in voting. But as Congress debates the Democrats’ new elections bill and the John Lewis Voting Rights Advancement Act, which would restore Section 5, a different path is still possible.
Isaac Cui is an MSc Regulation student at the London School of Economics and a 2020 Marshall Scholar.