After 2020, will Supreme Court help the Republican campaign to suppress voter rights?

Republicans are drawing exactly the wrong lessons from the 2020 election and, in many states, are pushing hard for greater restrictions on voting. The Supreme Court should make clear that election restrictions that have a discriminatory effect against minority voters — and the efforts to restrict voting almost always do — violate the Voting Rights Act of 1965.

So far this year, bills have been introduced in 33 states to restrict voting. These proposals primarily seek to limit mail voting, including by absentee ballots; impose stricter voter identification requirements; decrease voter registration opportunities and enable more aggressive voter roll purges.

Proponents of these bills say these reforms are needed to prevent fraud, despite the lack of any evidence of fraud in the 2020 elections. They are really transparent efforts to decrease voting by Democrats who vote by mail much more often than Republicans. Two-thirds of Trump voters say they voted in person, compared with 42% of Biden voters. Many studies have documented that the other restrictions will have a significant adverse effect for voters of color.

Opinion

This is why the cases the Supreme Court heard on March 2 are so important. The cases — Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee — involve Section 2 of the Act, which prohibits voting practices or procedures that discriminate on the basis of race, color or language.

The Civil Rights Movement worked to combat race discrimination in voting and to increase Black voter registration. Still, in 1964, only about 43% of adult Black men and women in the South were registered to vote. In Alabama, though, only 23% of African Americans were registered to vote and, in Mississippi, less than 7% of voting-age Black people were registered.

The key change occurred when Congress passed the Voting Rights Act of 1965, one of the most important civil rights statutes adopted in American history. Section 2 of the Voting Rights Act prohibits voting practices or procedures that discriminate on the basis of race or against certain language minority groups. Lawsuits can be brought to challenge state or local actions that are alleged to violate Section 2.

The cases before the court challenge two provisions of Arizona law. One says that a ballot is not to be counted if it was cast by a person outside of his or her precinct. The other prohibits “ballot harvesting,” making it a felony to collect and deliver another person’s completed ballot (with exceptions for family members, caregivers, mail carriers and election officials).

The United States Court of Appeals for the Ninth Circuit found that these practices violated the Voting Rights Act because they would disproportionately harm minority voters.

The opinion of the court, written by Judge William Fletcher, said these provisions “have a discriminatory impact on American Indian, Hispanic, and African American voters in Arizona” in violation of the Voting Rights Act. For example, the court noted that during the three general elections leading up to the 2020 election, Native Americans, Hispanics and African Americans in Arizona were twice as likely as whites to vote outside of the precinct to which they had been assigned and therefore to have their votes not counted. The court likewise said the prohibition on ballot harvesting had a discriminatory effect against minority voters, and, moreover, that it was motivated by discriminatory intent.

The Supreme Court should affirm the Ninth Circuit and hold that these provisions violate the Voting Rights Act. In doing so, the court should make clear that laws — like the many bills Republican legislators are now pushing — are illegal because they will have the effect of disadvantaging minority voters.

The lesson from the 2020 election should be that absentee ballots and voting by mail increase participation without any evidence of fraud. Laws should facilitate, not limit, these efforts to increase voting.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be contacted at echemerinsky@law.berkeley.edu.