The U.S. Supreme Court will hear a critical challenge to what's left of the Voting Rights Act after the Chief Justice John Roberts' majority decision in 2013 carved out the core of the law. At issue Tuesday are two Arizona laws, one requiring election officials to toss ballots that are cast in the wrong precincts and another that would restrict the delivery of mail-in ballots, allowing for just the voter, a family member, or caregiver could collect and deliver a voted ballot. That would prevent campaign workers, community activists, or members like church groups from delivering group ballots. With 43 states considering more than 250 voter suppression bills in the past month, the case has even greater import for the future of voting rights.
It puts into jeopardy Section 2 of the Voting Rights Act, which "prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups" identified as protected by the law. It bans any voting procedure that "results in a denial or abridgment of the right of any citizen of the United States to vote on account of race," a denial or abridgment that occurs when "based on the totality of circumstances," racial minorities "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice."
Arizona is one of those states, the challengers argue. It has a history of routinely changing voting locations in communities of color and putting polling locations in those communities in confusing, hard to access places. Additionally, its rural populations—particularly American Indian voters—without easy access to transportation rely on being able to amass their ballots for delivery.
Writing for the majority of the lower 9th Circuit court, in striking the Arizona laws down, Judge William Fletcher pointed all that out, saying there was a history of "frequent changes in polling locations; confusing placement of polling locations; and high rates of residential mobility," in communities of color, and pointed out that the ballot collection restrictions hurt communities that are more likely to be poor, housebound, disabled, without transportation, lacking childcare, and mail service or who need more help understanding voting rules. He also pointed out that "there is no evidence of any fraud in the long history of third-party ballot collection in Arizona." Which is a trend with restrictive voting laws—Republicans can't point to any actual fraud they're combatting, just potential future fraud.
When Roberts wrote the majority opinion back in 2013 striking down the key formula of Section 5 of the law—which determined which states with a history of discrimination needed to seek approval, or preclearance, from the federal government before enacting new voting laws—he wrote that voters would always have Section 2 as a remedy. Instead of protecting discriminated voters before the fact, he dismissed their concerns saying they could be addressed after the fact. "Section 2 is permanent, applies nationwide and is not at issue in this case," he wrote.
The late Justice Ruth Bader Ginsburg sharply disagreed in dissent. "Litigation occurs only after the fact, when the illegal voting scheme has already been put in place and individuals have been elected pursuant to it, thereby gaining the advantages of incumbency," she wrote. "An illegal scheme might be in place for several election cycles before a Section 2 plaintiff can gather sufficient evidence to challenge it. And litigation places a heavy financial burden on minority voters."
Now what skimpy protections Section 2 gives might be in jeopardy. Leigh Chapman, a lawyer with the Leadership Conference on Civil and Human Rights, which filed a brief supporting the challengers said that at the least, adherence to Section 2 shows a government that values voting rights. "Especially in the absence of Section 5," she said, "Section 2 plays an essential role in advancing the federal commitment to protecting minority voters and ensuring that they have an equal opportunity to participate in the political process." That makes it a particular test for Roberts, given his previous writings.
It's also a test for Senate Democrats on the filibuster. The For the People Act, which the House will vote on this week, and the John Lewis Voting Rights Advancement Act will expand and secure voting rights. The For the People Act would make voter registration automatic, help states secure their elections, enact nonpartisan redistricting reforms, and create higher ethical standards to combat dark money influence. The John Lewis VRAA would restore the Voting Rights Act, updating the formula used in Section 5 for determining states that had to get preclearance under it, the fixes Chief Justice Roberts said were needed in gutting the law.
To fight voter suppression, to fight the Republicans' incessant march toward anti-majoritarian, white supremacist rule, the Jim Crow filibuster has to go. Mitch McConnell and his fellow Republicans in the Senate are not going to provide the 10 votes Democrats would need to pass either of these key bills. It's that simple. It's also going to require court reform, so that there aren't federal courts so willing to abet Republicans, but that's another story and challenge for the Senate.
