Washington — The Supreme Court’s blockbuster ruling this month that placed new limits on a key provision of the landmark Voting Rights Act could hamper efforts by Democrats and voting rights advocates in the courts to derail new voting rules enacted by Republican-led states and force them to mount their battles in other arenas.
In its decision, the Supreme Courtfrom the battleground state of Arizona. One rule bans third-party collection of mail-in ballots, or so-called “ballot harvesting,” and a second discards ballots cast in the wrong precinct. In the 37-page opinion written by Justice Samuel Alito, the six-justice majority laid out several factors for lower courts to consider in future challenges to voting rules under Section 2 of the Voting Rights Act, which prohibits voting practices that discriminate on the basis of race.
These “guideposts,” as Alito called them, make it more difficult for voting rights activists and groups to succeed in invalidating more stringent rules that have already been enacted or are being considered by GOP-led states, which activists argue erect barriers to voting.
“The reason we have the federal Voting Rights Act is because there was a problem that needed to be solved on the national level, and if you look at the list of all the restrictive voting laws proposed, it’s clear that problem has not disappeared, but our solution has,” said Jessica Levinson, a professor at Loyola Law School and CBS News legal contributor. “The court has pulled our solution out from under us.”
Lawsuits that depend on Section 2 of the Voting Rights Act and the “results test” — whether a provision results in the denial of the right to vote based on race — as Arizona’s dispute did, face high hurdles to prevail, now that the Supreme Court has ruled.
“Any other lawsuit that’s dependent on Section 2 and the effects side, it’s really difficult to see how the Arizona case is anything other than a full body blow to those cases,” Levinson said. “Depending on how judges want to apply the factors, it’s maybe not a death knell for any case, but it certainly gives judges more cover and arguably more than cover, it gives judges almost mandatory guidance that these will be very difficult to win.”
Already this year, several lawsuits targeting ahave been filed, including one that argues several of its provisions run afoul of the Voting Rights Act. In announcing the Biden administration’s challenge to Georgia’s new rules last month, Attorney General Merrick Garland said the changes were enacted “with the purpose of denying or abridging the right of Black Georgians to vote on account of their race or color.”
The Justice Department’s case, though, may not be doomed to fail in the wake of the Supreme Court’s decision because, unlike Arizona’s, it claims Georgia’s legislature enacted the voting law with intent to discriminate against Black voters.
“The main significance of [the Arizona case] lies in disparate impact claims,” said James Gardner, a professor at the University of Buffalo Law School and elections law expert. “But disparate treatment, an intentional discrimination case, is not strictly within the reach of last week’s decision.”
The Justice Department’s legal challenge targets four sections of the new voting law and argues that state lawmakers enacted the law “with knowledge of the disproportionate effect that these provisions, both singularly and together, would have on Black voters’ ability to participate in the political process on an equal basis with white voters.”
But cases that claim discriminatory intent come with their own hurdles, Levinson said.
“They’re extraordinarily difficult to prove unless someone has done something insanely stupid, like written down, ‘We’re just doing this because we don’t want Black people to vote,'” she said. “It’s hard to get into somebody’s mind to show intent.”
The Supreme Court’s decision in the Arizona dispute was its first major voting rights ruling since 2013, when the high court effectively gutted Section 5 of the Voting Rights Act, a key provision that required certain jurisdictions with a history of racial discrimination in voting to receive federal approval before changing their election rules.
After the Supreme Court’s ruling in that case, known as Shelby County v. Holder, voting rights advocates began leaning on Section 2 as the main enforcement mechanism. But now, experts argue the court’s conservative majority blunted that tool as well.
“This case makes it harder for plaintiffs to prevail,” Gardner said. “Why? Because they have to have very clear facts and they have to demonstrate a pretty significant disparity between the impact on white and Black voters.”
The 6-3 decision from the high court, delivered on the final day of its term, came as GOP-led states debate changes to their voting rules. The November 2020 presidential election and concerns about election integrity after former President Donald Trump claimed without evidence there was widespread voter fraud served as the catalyst for legislative proposals tightening voting procedures.
In addition to Georgia’s sweeping elections measure, Florida alsothat changed its elections procedures, and Republicans in Texas have to impose restrictions on voting, though Democrats there are their attempts.
White House press secretary Jen Psaki on Monday called proposed laws restricting ballot access “authoritarian” and “the worst challenge to our democracy since the Civil War.” President Biden is set to deliver remarks on voting rights in Philadelphia on Tuesday.
While the Biden administration has pledged to fight efforts to impose new restrictions on voting, those battles may have to be waged not in the federal courthouses, but in state courts, where judges can review voting laws under state constitutions.
“There’s really nowhere else to go, because with the federal law as it’s been interpreted, it’s not just an uphill climb, you’re climbing three mountains back-to-back,” Levinson said. “You’re really dependent on what the state law is and how protective the state law is.”
Fights to expand, rather than restrict, ballot access can also take place in state legislatures, through ballot initiatives and in Congress.
“The federal courts are increasingly disinterested in patrolling these things,” Derek Muller, a law professor at the University of Iowa who focuses on election law, said. “We’ve been in such a litigation-focused approach to voting rights for a long time that people have neglected the lawmaking process.”
Congress attempted to pass a sweeping elections reform bill, called the For the People Act, but Republicansfrom advancing in the evenly divided Senate. Lawmakers now have an eye on legislation that would restore the protections of the Voting Rights Act dismantled by the Supreme Court in 2013.
Any voting bill will need support from at least 10 Senate Republicans to advance, though Levinson said she hopes the Supreme Court’s decision in the Arizona case will mobilize lawmakers to act.
“It’s not just that we’re without our shirt without Section 5, now we’re without our shirt and our pants,” Levinson said. “Do you really want us out here naked in the wind?”