Another Conservative Voting Rights Decision by the Supreme Court

It should be remembered that back in 2013, the Supreme Court ruled in Shelby County, Alabama, v. Holder that the section of the Voting Rights Act of 1965 requiring certain states to ask permission from the federal government to change their voting laws was no longer constitutional, on the grounds that the problems that existed in 1965 were no longer relevant.  In that decision, all five Republican appointees were in the majority and all four Democratic appointees on the Court were in the dissenting minority.  Now, there are six Republican appointees, three appointed by Trump, and this new ruling has all six of them voting that Arizona’s new voting laws are okay, and the three liberal justices feeling otherwise.

This case is Brnovich v. Democratic National Committee.  The DNC had successfully persuaded a lower court that Arizona’s new voting laws, because they were going to have the greatest impact on nonwhite voters, violated the Voting Rights Act of 1965, specifically the provision which states that “no voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.”  The suit specifically challenged two voting laws:  the law saying that ballots cast in the wrong precinct would not be counted even for offices not affected by precinct, and the law restricting who can collect and deliver a mail-in ballot (designed to prevent “ballot harvesting”).  But by a 6-3 majority, the Supreme Court ruled that those laws do not violate the Voting Rights Act.

The majority decision was written by Justice Samuel Alito.  He wrote that the state has a compelling interest in preventing voter fraud.  In response to the argument that no voter fraud was proven in the most recent election, Alito retorted that the state does not have to wait till voter fraud happens to pass laws to prevent it.  Moreover, he wrote, the Voting Rights Act has been interpreted as meaning that all persons must have equal access and opportunity to vote.  It is still inevitable that there have to be some voting laws, and any voting law is likely to impose some degree of burden or inconvenience on the voters, but that isn’t enough to make it an impermissible hindrance.  He then addressed racial inequality.

To the extent that minority and non-minority groups differ with respect to employment, wealth, and education, even neutral regulations, no matter how crafted, may well result in some predictable disparities in rates of voting and noncompliance with voting rules. But the mere fact there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote. The size of any disparity matters. And in assessing the size of any disparity, a meaningful comparison is essential. What are at bottom very small differences should not be artificially magnified.

Justice Elena Kagan wrote the dissent.  “Much of the Voting Rights Act’s success,” she opined, “lay in its capacity to meet ever-new forms of discrimination.”  She then quoted the late Justice Ruth Bader Ginsburg’s dissenting opinion in the Shelby County case: “Whenever one form of voting discrimination was identified and prohibited, others sprang up in its place.”

In recent months, State after State has taken up or enacted legislation erecting new barriers to voting…. Those laws shorten the time polls are open, both on Election Day and before. They impose new prerequisites to voting by mail, and shorten the windows to apply for and return mail ballots. They make it harder to register to vote, and easier to purge voters from the rolls. Two laws even ban handing out food or water to voters standing in line. Some of those restrictions may be lawful under the Voting Rights Act. But chances are that some have the kind of impact the Act was designed to prevent—that they make the political process less open to minority voters than to others.

Arguing that the majority on the Court had not interpreted, but remade, the Voting Rights Act, she concluded:

The law that confronted one of this country’s most enduring wrongs; pledged to give every American, of every race, an equal chance to participate in our democracy; and now stands as the crucial tool to achieve that goal. That law, of all laws, deserves the sweep and power Congress gave it. That law, of all laws, should not be diminished by this Court.

It should be noted that in this case, unlike in the 2013 Shelby County case, the Court did not strike down any part of the Voting Rights Act of 1965 as being unconstitutional.  It did, however, make it harder to apply to state laws that make it harder for persons who need a little extra prodding, a little extra convenience, or a little extra assistance to cast ballots in future elections.

Article in Politico, July 1, 2021

Full text of the ruling and the dissent

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