Maricopa County, Ariz., elections officials count ballots on Nov. 4 in Phoenix. Eight years after carving the heart out of a landmark voting rights law, the U.S. Supreme Court put new limits on efforts to combat racial discrimination in voting. Matt York/AP
The U.S. Supreme Court for all practical purposes rendered the landmark Voting Rights Act a dead letter on Thursday.
The 6-3 vote was along ideological lines, with Justice Samuel Alito writing the decision for the court's conservative majority, and the liberals in angry dissent.
At issue in the case were two Arizona laws. One banned the collection of absentee ballots by anyone other than a relative or caregiver, and the other threw out any ballots cast in the wrong precinct. A federal appeals court struck down both provisions, ruling that they had an unequal impact on minority voters and that there was no evidence of fraud that would have justified their use.
But on Thursday, the Supreme Court reinstated the state laws, declaring that unequal impact on minorities in this context was relatively minor, that other states have similar laws and that states don't have to wait for fraud to occur before enacting laws to prevent it.
Just because voting may be "inconvenient for some," Alito wrote, doesn't mean that access to voting is unequal. And he said that in evaluating what the Voting Rights Act requires, courts should look to what the voting rules were in 1982 when the relevant provision of the law was enacted. Back then, he observed, almost all voting was in person and on Election Day. And "the mere fact that 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. "
Writing the dissent, Justice Elena Kagan accused the majority of "yet again" rewriting the Voting Right Act, a law, she noted, designed to bring about "the end of discrimination in voting."
"Never before has a statute done more to advance the nation's highest ideals," she said. "Few laws are more vital in the current moment. Yet in the last decade this Court has treated no statute worse."
The landmark law, widely hailed as the most effective piece of civil rights legislation in the nation's history, was reauthorized five times after its original passage in 1965, but for all practical purposes, all that is left of it now is the section banning vote dilution in redistricting based on race.
Eight years ago, the court by a 5-4 majority gutted the law's key provision, which until then required state and local governments with a history of racial discrimination in voting to get approval from the U.S. Justice Department for any changes in voting procedures.
When that provision was struck down by the court in 2013, the only protections for voting rights that remained in the law were in Section 2.
Though Section 2 has largely been used to prevent minority vote dilution in redistricting, importantly, it does bar voting procedures 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." So the Arizona case was viewed as particularly important because it was the first time the court dealt with a claim of vote denial under Section 2 and how to evaluate it.
"This Court has no right to remake Section 2," Kagan wrote in her dissent. "Maybe some think that vote suppression is a relic of history — and so the need for a potent Section 2 has come and gone. ... But Congress gets to make that call. Because it has not done so, this Court's duty is to apply the law as it is written. 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."
Arizona Republicans and the Republican National Committee argued that both laws were needed to prevent fraud. But the 9th U.S. Circuit Court of Appeals ruled that there was no record of fraud and that there was evidence these two provisions ended up denying many minorities the right to vote. The appeals court noted, for instance, that ballot collectors were needed in some large, rural and remote parts of the state. It pointed, for instance to the Navajo Nation, an area the size of West Virginia, where there are few post offices or postal routes, and where people without cars often have no way to send their ballots without collectors picking them up.
The high court, however, rejected the lower court findings — and reaction to Thursday's opinion was along partisan lines.
President Biden, in a statement, said he was "deeply disappointed in today's decision by the United States Supreme Court that undercuts the Voting Rights Act."
"After all we have been through to deliver the promise of this Nation to all Americans, we should be fully enforcing voting rights laws, not weakening them," he said. "Yet this decision comes just over a week after Senate Republicans blocked even a debate – even consideration – of the For the People Act that would have protected the right to vote from action by Republican legislators in states across the country."
Arizona Attorney General Mark Brnovich, who defended the state law, said on Twitter, "I am thankful the justices upheld states' ability to pass and maintain commonsense election laws, at a time when our country needs it most."
Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund, said on Twitter: "We are fighting against the most concerted state-based effort to undermine Black voting strength since the Civil Rights Mvmt. And in that context, the Supreme Court has again, & w/abandon, shredded a core provision of the Voting Rights Act."
Arizona, of course, has been ground zero for former President Donald Trump's claims that the election was stolen, and a Trump-inspired audit has taken place there. The attempt to undo the certification of the election results has been widely discredited, even by some Republican officials, and is meaningless because the state's electoral votes were long ago certified for Biden.
But the court's decision could play an important role in next year's midterm elections and elections thereafter.
Many Republican-dominated states have passed laws far more problematic than the two at stake in Arizona.
Indeed, the U.S. Justice Department, in a statement, said: "The department remains strongly committed to challenging discriminatory election laws and will continue to use every legal tool available to protect all qualified Americans seeking to participate in the electoral process. The department urges Congress to enact additional legislation to provide more effective protection for every American's right to vote."
Thursday's decision complicates the department's decision to sue the state of Georgia over its new voting law, alleging that the measure is intended to restrict ballot access to Black voters.
The two laws at the center of Thursday's case are not unusual. Other states have enacted limits on absentee ballot collectors, especially when fraudulent practices have been uncovered. Although the 9th Circuit found no evidence of fraud in the Arizona election system, problems with absentee ballot collection systems have occurred elsewhere. Perhaps the most prominent example came in 2018 in North Carolina when a Republican vote collection and tampering scandal resulted in a new congressional election being ordered for one district.
In the wake of Trump's false allegations that Democrats stole the 2020 election, many states, particularly those controlled by Republicans, have sought to change voting laws in a way that critics say is aimed at curtailing the right to vote, particularly among minorities. Last month, the Brennan Center for Justice reported that 22 new voting laws had been enacted and 389 proposed in 48 states just since the 2020 election.
The U.S. House of Representatives passed a bill, H.R.1, that would have set federal standards and overridden voter suppression provisions across the country, but in the Senate, opponents blocked consideration of the bill.
The laws that the court ruled on Thursday are not unique, and some Democrats consequently thought that challenging them risked a decision that would make it harder to challenge other restrictions in the future. But former Democratic Party Chairman Tom Perez maintained that the situation in Arizona was different because of the huge rural areas without Postal Service.
At the same time, GOP lawyers defending the laws candidly admitted during the oral argument in the case that the Republican Legislature's motive in enacting the Arizona voting restrictions was less anti-fraud and more political.
Not having such restrictions "puts us at a competitive disadvantage," lawyer Michael Carvin said on behalf of the GOP. "Politics is a zero-sum game, and every law they get through an unlawful interpretations of Section 2 hurts us."
Still, the court's decision is likely to increase pressure further on Biden and congressional Democrats to pass voting reform legislation. Those efforts have stalled, both because of Republican opposition as well as a lack of support from Democratic Sen. Joe Manchin of West Virginia, who says he believes the legislation under consideration is far too sweeping.
Under current rules, Democrats need all 50 of their own senators as well as 10 Republicans to pass the measure.
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