Supreme Court weakens another Voting Rights Act provision

Schumer calls decision 'simply unconscionable'

Demonstrators stand outside the Supreme Court in Washington on June 23.  (Caroline Brehman/CQ Roll Call)
Demonstrators stand outside the Supreme Court in Washington on June 23. (Caroline Brehman/CQ Roll Call)
Posted July 1, 2021 at 11:27am

A sharply divided Supreme Court upheld Arizona voting policies Thursday in a ruling that likely will make it harder for voting rights advocates to prove that election laws should be struck down as discriminatory.

In a 6-3 decision that split along familiar ideological lines, the majority stopped short of striking down Section 2 of the Voting Rights Act as unconstitutional, and did not make a new test to govern all similar challenges to voting rules.

But Justice Samuel A. Alito Jr., writing for the court, set out legal guideposts for such challenges that would stop legitimate state election laws from being struck down under the Voting Rights Act just because those laws affected racial minorities more.

Justice Elena Kagan, in a dissent, called the decision “tragic” in that it rewrites Section 2 to weaken it and save Arizona’s laws. That dissent also highlights how the conservative majority in 2013 weakened a key enforcement provision of the Voting Rights Act in its Shelby County v. Holder decision.

Alito and Kagan both sharply criticized the other's approach in the opinion and dissent, as voting rights advocates and Democratic lawmakers reacted with calls for Congress to act to update the anti-discrimination law.

Election law expert Rick Hasen, a professor at the University of California, Irvine School of Law, said the ruling creates a new hurdle for proving intentional racial discrimination in laws that make it harder to register and vote — which will, in turn, make it more difficult for the Justice Department’s challenge to Georgia’s new voting law.

“This is not a death blow for Section 2 claims, but it will make it much, much harder for such challenges to succeed,” Hasen wrote.

The decision upheld Arizona policies that require voters to cast their ballots at the precincts to which they are assigned, as well as a challenge to a state law that bans “ballot harvesting,” which is the collection and return of mail-in ballots by a third party.

The Democratic National Committee had argued that Arizona’s ban on ballot collection, for example, disproportionately affects Native Americans, rural Latinos and minorities in high-density urban housing units in the state who face trouble with mail service. Arizona pointed to desires to prevent election fraud.

Alito wrote that the majority’s interpretation does what Section 2 commands, to consider “the totality of circumstances” of a law and whether the state’s voting is equally open and gives equal opportunity for everyone to vote — and “Arizona law generally makes it very easy to vote.”

“Section 2 of the Voting Rights Act provides vital protection against discriminatory voting rules, and no one suggests that discrimination in voting has been extirpated or that the threat has been eliminated,” Alito wrote. “But Section 2 does not deprive the States of their authority to establish non-discriminatory voting rules, and that is precisely what the dissent’s radical interpretation would mean in practice.”

Alito wrote that the dissent’s interpretation of Section 2 that a law has a “statistically significant” effect on minority voters may be enough to take down even voting rules that appear to be neutral "with long pedigrees that reasonably pursue important state interests.”

Kagan countered that “however ‘radical’ the majority might find the idea,” Section 2 tells courts to eliminate election laws that appear to be neutral if they unnecessarily create inequalities of access to the political process.

“That is the very project of the statute, as conceived and as written—and now as damaged by this Court,” Kagan wrote.

The decision comes amid a simmering partisan debate over the Georgia law, known as SB 202, and other state voting laws enacted in the wake of the 2020 election that swept President Donald Trump out of office as he spread unfounded allegations of election fraud.

Democrats say the laws restrict voting rights, while Republicans say the laws will ensure voting integrity and accuracy.

President Joe Biden said the court has now “done severe damage” to two of the most important provisions of the Voting Rights Act of 1965, which took “years of struggle and strife to secure.”

“The Court’s decision, harmful as it is, does not limit Congress’ ability to repair the damage done today: it puts the burden back on Congress to restore the Voting Rights Act to its intended strength,” Biden said.

House Judiciary Committee Chairman Jerrold Nadler of New York criticized the decision and said the committee will complete its work on a bill to bolster the Voting Rights Act and will bring it to the floor “as quickly as possible.”

“Congress must act where the Court has failed,” Nadler said in a joint press release with Tennessee Democratic Rep. Steve Cohen, the chairman of the Judiciary subcommittee on the Constitution and civil rights and liberties.

Senate Majority Leader Charles E. Schumer of New York, in a press release, called it one of the darkest days in Supreme Court history and said it underscored the need for Congress to act.

“It is simply unconscionable that the Court’s conservative majority chose to double down on their gutting of the Voting Rights Act, failing to properly respond to a wave of restrictive and discriminatory laws in the wake of Shelby and a flood of suppressive laws that have followed President Trump’s Big Lie about the November election,” Schumer said.

Republicans last month blocked debate on Democrats’ signature overhaul of elections, campaign finance and ethics laws, which the GOP senators called a power grab that gave too much control over elections to the federal government.

Arizona Attorney General Mark Brnovich, one of multiple Republicans running to unseat Democratic Sen. Mark Kelly, called the ruling a win for election integrity safeguards in his state and across the country.

"Fair elections are the cornerstone of our republic and they start with rational laws that protect both the right to vote and the accuracy of the results," Brnovich said.