Did the Supreme Court Just Kill the Voting Rights Act?
Bans on ballot collection. Limits on vote-by-mail drop boxes. Shorter hours at polling places. Across the country, Republican legislatures are passing laws to make it harder to vote. Which is why, for proponents of expansive voting rights, the Supreme Court decision last week upholding two such laws could scarcely have come at a worse time.
“What is tragic here is that the court has (yet again) rewritten — in order to weaken — a statute that stands as a monument to America’s greatness, and protects against its basest impulses,” Justice Elena Kagan wrote in her dissent, which was joined by the two other liberal justices. “What is tragic is that the court has damaged a statute designed to bring about ‘the end of discrimination in voting.’”
Kagan was referring to the Voting Rights Act, the landmark 1965 legislation often described as “the crown jewel” of the civil rights movement. How much power will this decision strip from the law, and what role will it play in the larger battle over the freedom and fairness of American elections? Here’s what people are saying.
Inside the decision
The case concerned a pair of voting restrictions in Arizona: one that required election officials to discard ballots cast at the wrong precinct and another that made it a crime for most people to collect ballots for delivery to polling places, a practice that critics call “ballot harvesting.”
Democrats argued those rules end up disproportionately affecting voters of color, therefore violating Section 2 of the Voting Rights Act of 1965. (I should mention here that my brother was part of the legal team that argued this case before the court.) Ballot collection, for example, is widely used by Arizona’s Native population, some of whom live far from polling places and lack easy access to mail services.
The attorney general of Arizona defended the laws as necessary protections against threats to election integrity, such as voter fraud — which is largely nonexistent. (The 2020 presidential election “was the most secure in American history,” U.S. officials have said.) In oral arguments in March, an attorney representing the Arizona Republican Party was bluntabout the party’s interest in the case:
The ruling: The court concluded that the burdens imposed by the laws were acceptably modest. “Voting takes time and, for almost everyone, some travel, even if only to a nearby mailbox,” Justice Samuel Alito wrote for the majority. “Mere inconvenience cannot be enough.” Moreover, Alito argued, the racial disparity in the laws’ impact was too small to violate the Voting Rights Act.
The court did not establish an ironclad test for lower courts to apply in cases challenging voting laws like Arizona’s, but it did set up five “guideposts” that some legal experts say will favor restrictions.
The big picture: This ruling comes eight years after the Supreme Court effectively annulled Section 5 of the Voting Rights Act, which required states and local governments to clear in advance any voting rule changes with the federal government if those states had a history of discrimination. Chief Justice John Roberts’s majority opinion in that case said that plaintiffs could still seek redress under Section 2 of the law, which allows after-the-fact litigation against any legislation that discriminates on the basis of race, intentionally or not.
But now, the Voting Rights Act “retains only limited power to combat voting restrictions said to disproportionately affect minority voters’ access to the polls,” The Times’s Adam Liptak writes.
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Is the Voting Rights Act dead?
Since November, at least 22 laws have been enacted in 14 states that impose new restrictions on voting. While there are other legal avenues to challenge these laws — including the First, 14th and 15th Amendments — the precedent established in this case suggests that the Supreme Court will not be inclined to overturn them under the Voting Rights Act.
“It is hard to see what laws would be so burdensome that they would flunk the majority’s lax test,” Richard L. Hasen writes in The Times. “A ban on Sunday voting despite African American and other religious voters doing ‘souls to the polls’ drives after church? New strict identification requirements for those voting by mail? More frequent voter purges? All would probably be OK under the court’s new test as long as there are still some opportunities for minority citizens to vote — somewhere, somehow.”
But others are slightly less pessimistic. Ian Millhiser argues at Vox that while the case, Brnovich v. Democratic National Committee, “is a blow to liberal democracy, it is not an apocalypse.” He notes that the opinion is limited in scope to “cases involving neutral time, place and manner rules” governing elections, likely preserving the ability to challenge many of the most restrictive voting laws being pushed around the country. “From a 6-3 court, Alito’s Brnovich decision is probably the best that both large-D Democrats and small-d democrats could have hoped for.”
Allison Riggs, a senior lawyer at the Southern Coalition for Social Justice, took a similar view. “This decision overly constricts how we view evidence in our Section 2 cases, and that’s going to make it harder — not unwinnable — but harder,” she told The Times.
What’s next
For many Democrats and voting rights activists, this latest decision adds more urgency to the congressional push to enact two voting laws that would effectively prevent states from limiting access to the ballot: The For the People Act, a sweeping overhaul of federal election and campaigning laws, and the narrower John Lewis Voting Rights Advancement Act, which would restore Section 5 of the Voting Rights Act.
“Many of the provisions in the state Republican-enacted voter-suppression laws popping up after the 2020 election would be flatly (and retroactively) prohibited” by the For the People Act, Ed Kilgore explains in New York magazine. The narrower bill, by contrast, “would simply stop future laws and procedural changes from taking effect without a Justice Department preclearance.”
Even those bills, though, may not be sufficient to turn back the anti-democratic tide, the Times editorial board argues. That’s because Republican lawmakers around the country are not only making it more difficult to vote, but also changing the rules around how votes are counted and certified. “These laws are of a piece with the voting restrictions being passed by the same lawmakers,” the board writes. “Together, they are designed to keep Democratic-leaning voters away from the polls, and to the extent that fails, to deny victory to Democratic candidates, even when they win more votes.”
In any case, the odds of either bill passing seem slim. Republican senators blocked debate last week on the For the People Act and only one, Lisa Murkowski, has signaled her support for the Voting Rights Advancement Act. That means Democrats would have to change Senate filibuster rules, which Kyrsten Sinema and Joe Manchin remain opposed to doing. “Democrats claim that democracy is under threat, but they lack the collective will to save it,” Russell Berman writes in The Atlantic.
If Republican efforts succeed, the right to vote may become increasingly polarized along geographic lines: Despite the wave of restrictive voting legislation, my colleague Ezra Klein notes, at least 28 bills expanding voting access have been passed in 14 states.
“We are becoming a two-tiered society when it comes to voting,” Ari Berman, author of “Give Us the Ballot: The Modern Struggle for Voting Rights in America,” told Klein on a recent episode of his podcast. “It’s really easy to vote in some places, namely bluer places. And it’s really hard or getting harder to vote if you live in a red state.”
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