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The U.S. Supreme Court is seen in Washington, DC, on January 31, 2017. Credit - Saul Loeb/AFP—Getty Images
The U.S. Supreme Court will hear oral arguments on Tuesday on two controversial Arizona voting restrictions, and what the justices decide could have sweeping effects on how difficult it will be to challenge allegedly discriminatory voting laws in the future.
The cases being argued together on March 2 concern two voting policies in Arizona, a key battleground state in the 2020 election: one banning ballot collection—the process by which someone collects and drops off others’ mail-in ballots—and one requiring officials to throw out ballots cast at wrong precincts.
Voting advocates have decried the policies as racially discriminatory, particularly against Native Americans. Voters living on reservations may have to travel up to 45 miles to the nearest post office, and in some parts of Navajo Nation only one in 10 families own a vehicle—causing many Native communities to have a neighbor or clan member collect everyone’s ballots and drop them off together, according to an amicus brief filed by Navajo Nation. Arizona banned this in its 2016 law, which still permits family members and caregivers to drop off ballots, but prohibits other community members from doing so. When voting in-person, confusion over county precincts not matching tribal boundaries, where residents vote in tribal elections, can cause Native voters to cast ballots at the wrong location, and a lack of traditional street addresses can cause Native voters to be assigned the wrong precinct altogether, advocates say. Entire ballots cast in the right county but wrong precinct are typically thrown out under Arizona’s current rules.
The Democratic National Committee (DNC) challenged both policies under the Voting Rights Act (VRA) in 2016, arguing that they have a discriminatory impact on racial minorities that connects to a history of discrimination in the region. Arizona’s Republican Attorney General Mark Brnovich and the Arizona Republican Party have defended the policies, arguing that they apply to all voters equally and constitute the ordinary burdens of voting.
Now the Supreme Court’s ruling on the two lawsuits—which have been consolidated into the case Brnovich v. Democratic National Committee—could determine what becomes of the remaining power of the VRA, the most powerful federal legal protection for ensuring equitable voting laws.
Beyond Arizona, the Court’s ruling could impact voting rights across the U.S. The suits center around the VRA’s Section 2—which became the landmark law’s primary enforcement tool after 2013’s Supreme Court ruling Shelby County v. Holder gutted other portions. Section 2 allows people to challenge laws they believe are racially discriminatory, as the DNC has done. Attorney General Brnovich argues that Section 2 must be read more narrowly and should only apply to laws that deny anyone the “equal opportunity” to vote, and the state’s Republican Party argues the VRA shouldn’t apply to most laws regulating the time, place or manner of voting—which advocates say would render it effectively useless. In other words, after striking down key parts of the VRA eight years ago, the Supreme Court will now have the opportunity to dismantle what remains of the landmark voting rights law—or affirm its last forceful provision.
The laws’ challengers may face an uphill battle at the nation’s highest court: it is currently divided 6-3 with conservatives in the majority, and three of the current conservative justices previously voted to strike down provisions of the VRA in the Shelby decision. Justices Clarence Thomas and Samuel Alito were in the majority of Shelby, and Chief Justice John Roberts wrote that opinion himself.
With more than 165 bills that would restrict voting already moving through state legislatures—over four times the amount that were active at roughly the same time last year—the fate of Section 2 could have nationwide implications on challenges to current and future voting laws. If the Court rules in a way that limits the ability of voters to use Section 2, “It’s going to have a really devastating effect in that they could render it practically unusable as a tool to fight voter suppression,” says Davin Rosborough, senior staff attorney with American Civil Liberties Union’s Voting Rights Project, which has filed a brief arguing against Brnovich’s reading of Section 2. There are also enormous political implications. Many of the states moving to limit mail voting and strengthen voter ID laws, like Georgia and Arizona, had close and consequential presidential and Senate races in 2020. Any further erosion of the Voting Rights Act could influence voter turnout and which votes are counted in the 2022 midterms, which will determine who controls the U.S. House and the currently evenly-divided Senate.
“If Section 2 doesn’t apply meaningfully to a lot of these laws, it’s going to be an open field for Republican governments to really make it harder to vote,” says Michael Kang, a voting rights expert and law professor at Northwestern University.
The last key provision of the Voting Rights Act
Congress passed the VRA in 1965 to ban racial discrimination in voting. The law contained several key provisions: Section 5 required jurisdictions with a history of racial discrimination to submit any changes to their voting laws to the Department of Justice or or the district court in the District of Columbia for review. Section 4b contained the formula for determining which jurisdictions had to go through this preclearance process. And Section 2 allowed voters themselves to legally challenge laws on the basis of being racially discriminatory.
But in 2013, the Supreme Court ruled in Shelby County v. Holder that Section 4b was unconstitutional because it was based on decades-old data, effectively killing Section 5. “Our country has changed,” Roberts wrote in his majority opinion, arguing that Congress must ensure its legislation “speaks to current conditions.” Justice Ruth Bader Ginsburg argued in response that “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” Five years later, a 2018 Brennan Center report found that states that had previously had to abide by the preclearance requirement “have engaged in recent, significant efforts to disenfranchise voters.”
Section 2 is the VRA’s last muscle—and voting rights advocates have taken it up as the primary mechanism for challenging an influx of voting laws that they allege limit the ability of people of color to vote.
In 1982, President Ronald Reagan signed an amendment to the VRA clarifying that Section 2 can be applied to laws that result in discrimination, regardless of if the lawmakers intended them to do so. In order to strike down a law under Section 2, litigants must prove that it both produces racially discriminatory results and connects to social and historical discrimination.
People can challenge a law under Section 2 on two grounds: vote dilution or vote denial, Rosborough of the ACLU explains. Vote dilution limits the ability of a minority group to elect representatives of their choice and often has to do with redistricting; the Supreme Court has heard several cases regarding the issue. Vote denial, on the other hand, limits the ability of a racial or ethnic group to have an equal opportunity to participate in the political process. The Arizona case will be the first involving vote denial claims under Section 2 heard by the Supreme Court since the 1982 amendment.
The Supreme Court’s verdict—which will come by mid-summer— could affect how high the bar is for plaintiffs to legally challenge potentially discriminatory voting laws using Section 2. If the Court sides with the Arizona GOP, advocates worry it could be extremely difficult to challenge laws that don’t on their face deny certain groups an equal opportunity to vote. That reading of Section 2 could make it difficult for the VRA to be used against voter ID laws, cutbacks to early voting or restrictions to voter registration—the kinds of laws popping up all over the country that advocates argue are designed to impact voters of color, even if lawmakers don’t explicitly say so.
“They are targeting Black, brown and young voters with surgical precision,” said Marc Elias, a lawyer for the DNC and the founder of Democracy Docket, during a press conference Monday. “The proposals they are making are not arbitrary. They don’t hit all Americans the same.” Republicans in Georgia’s state legislature, for example, are seeking to limit Sunday voting, which is frequently used by Black voters who participate in Church-led “souls to the polls” voter drives. Almost half of the more than 160 bills introduced across statehouses nationwide are aimed at limiting mail voting, according to the Brennan Center for Justice. Experts say these changes could particularly impact minority voters, who studies show live in precincts with longer wait times and may rely on mail voting for its convenience.
“Huge” stakes for voting rights
The Arizona voting rules in question are particularly burdensome for Native Americans, some election advocates argue. In January, a federal appeals court agreed, ruling that they both violate Section 2. But then Brnovich appealed to the Supreme Court, where the fight now continues.
In addition to living long distances from post offices and sometimes lacking a formal address, which makes it harder to collect and drop off mail-in ballots, more than 80% of Navajo Nation’s roads are unpaved dirt roads and renting a post office box can cost around $136 for one year, according to an amicus brief filed by the Navajo Nation. It’s in this context that ballot collection can be essential, says Jacqueline De León, staff attorney at Native American Rights Fund. “It’s like, community members regularly say to each other, I’m going to do a mail run, does anybody have anything for me?” De León says. “So the idea that you would criminalize it, really harshly criminalize somebody that’s being neighborly because somebody literally can’t pick up or drop off their mail is pretty outrageous.”
Federal judges who ruled the laws violated Section 2 in January noted that Arizona rejects a higher percentage of provisional ballots than any other state, and in the 2012 election, counties with significant Native American populations (Apache, Navajo and Coconino) faced the highest rate of rejected provisional ballots statewide. What’s more, some of the state’s counties, including Maricopa (Arizona’s largest) used vote center models that allow residents to vote in a precinct that isn’t assigned to them as long as they are in the right county. “Some voters have the opportunity to vote out-of-precinct and some do not, all depending on the county’s policies where they reside,” the Nation’s brief pointed out.
Kang explains that it’s important to understand the Arizona laws in the larger context of attempts at curbing voting access nationwide. “These are exactly the kinds of prescriptions and changes that are part of this whole gigantic agenda from the right to make it harder to vote for minorities,” he says. But the case goes far beyond Arizona’s borders. “Really, what we’re doing is setting the rules for hundreds of challenges to laws in every state,” he adds.
In their response to the DNC’s claims that the two voting provisions result in racial discrimination, Brnovich and the Arizona GOP say that the laws do not violate Section 2, which they argue should be read to only apply to laws that directly prevent certain groups from voting. Arizona Governor Doug Ducey, State Senate President Karen Fann and House Speaker Russell Bowers— all Republicans—wrote in a brief supporting Brnovich that “The Voting Rights Act protects “the right to vote,” not the right to vote however one pleases,” and that “Congress did not pass the Voting Rights Act to combat inconvenience” but rather to “remedy the systematic exclusion of blacks from the polls by the use of poll taxes, literacy tests, and similar devices.” While Native Americans are more likely to vote via ballot collection, they don’t have to, the argument goes. The ballot collection law, on its face, applies to all voters the same way.
“They want to put aside all this issue of how the effects of discrimination over the decades have produced this disparity, and simply look at whether the rule on its face causes some people to be able to vote and not others,” says Paul Smith, vice president of litigation and strategy at the Campaign Legal Center, which has filed a brief in opposition to Brnovich. Under this argument, Smith says, “unless the rule on its face draws a distinction that causes this racial disparity, you just can’t sue on it, even though the disparity may exist.”
All in all, the stakes are “huge,” says De León. The case could determine “whether or not the federal government and the Voting Rights Act will provide relief for discrimination against voting,” she says. “Whether there will be an avenue to pursue relief or not. Whether or not discrimination will be allowed to continue unabated.”