The Voting Rights Act sustained another blow at the Supreme Court on Thursday, as the justices took a narrow view of when state voting practices can be held to violate the rights of minorities.
In a pair of high-profile cases from Arizona, the justices split 6-3 along ideological lines, with the majority concluding that a disparate impact on minority groups would typically not be enough to render voting rules illegal under the act.
The decision, addressing Arizona’s bans on out-of-precinct voting and a practice critics call “ballot harvesting,” is likely to complicate legal challenges Democrats and civil rights groups are mounting to new voting restrictions Republicans are seeking to implement in states across the country.
The ruling interpreting the Voting Rights Act means states will be able to defend newly-enacted changes to election procedures by saying they’re consistent with rules in other states.
The court’s majority opinion, from Justice Samuel Alito, does not offer a bright-line test for future cases. It also does not rule that Section 2 of the landmark 1965 Voting Rights Act, which prohibits voting laws that are discriminatory on the basis of race, is unconstitutional. However, he stressed that rules amounting to only a modest imposition on voters would not usually amount to a violation of the act.
“Every voting rule imposes a burden of some sort. Voting takes time and, for almost everyone, some travel, even if only to a nearby mailbox. Casting a vote, whether by following the directions for using a voting machine or completing a paper ballot, requires compliance with certain rules,” Alito wrote.
Alito also stressed that not every practice that disadvantages minority voters would run afoul of the law.
“The mere fact there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote. The size of any disparity matters,” he wrote. “What are at bottom very small differences should not be artificially magnified.”
President Joe Biden said in a statement that he was “deeply disappointed” in the decision. “In a span of just eight years, the Court has now done severe damage to two of the most important provisions of the Voting Rights Act of 1965 – a law that took years of struggle and strife to secure,” Biden said.
And while Alito’s decision does not impose a specific new test for challenging voting laws as discriminatory, it does lay out a set of “certain guideposts” that could make it significantly harder to challenge election laws.
All the court’s liberals dissented, joining an opinion by Justice Elena Kagan that portrayed Thursday’s ruling as part of a profound and ongoing curtailment of the landmark 1965 voting rights law by the high court.
“What is tragic here is that the Court has (yet again) rewritten—in order to weaken—a statute that stands as a monument to America’s greatness, and protects against its basest impulses,” Kagan wrote. “What is tragic is that the Court has damaged a statute de-signed to bring about “the end of discrimination in voting.”
Kagan pointedly accuses the conservative justices of betraying a principle they claim to hold dear: that statutes should be unfailingly interpreted according to the text Congress enacted.
“The majority fears that the statute Congress wrote is too ‘radical’—that it will invalidate too many state voting laws,” Kagan writes. “So the majority writes its own set of rules, limiting Section 2 from multiple directions.”
Language added to the Voting Rights Act in 1982 prohibits states or localities from employing any election practice which “results” in the infringement of voting rights “on account of race.”
Alito suggested in his majority opinion that practices that were “commonplace” in many states at that time would also generally be permissible, even if they had some adverse impact on minority voting.
“We doubt that Congress intended to uproot facially neutral time, place, and manner regulations that have a long pedigree or are in widespread use in the United States,” Alito wrote. He also noted that in 1982 most states “required nearly all voters to cast their ballots in person on election day” and had strict limits on absentee voting.
However, the court left open the question of whether a state’s decision to return to the practices of four decades ago would always pass muster under the VRA’s ban on voting procedures that result in discrimination.
“We have no need to decide whether adherence to, or a return to, a 1982 framework is necessarily lawful under §2, but the degree to which a challenged rule has a long pedigree or is in widespread use in the United States is a circumstance that must be taken into account,” Alito wrote.
Another “guidepost” laid out by Alito would rein in future challenges to specific methods of voting. “Courts must consider the opportunities provided by a State’s entire system of voting when assessing the burden imposed by a challenged provision,” he wrote.
In a suit the Justice Department filed last week against Georgia over its newly-enacted voting rules, Biden administration lawyers seemed to be trying to steer clear of the uncertainty about the so-called “results” test added into the statute after a 1980 Supreme Court decision ruled out such challenges.
Instead, the DOJ based its new suit entirely on the claim that the state’s changes were motivated by a desire to limit African Americans’ voting strength. The use of the Voting Rights Act to challenge practices that are intentionally discriminatory has been largely undisputed since the landmark civil rights law’s passage in 1965.
However, one activist fighting against the new Georgia law lamented the new court ruling as a blow to that effort.
“This ruling just gave white supremacy a big win,” said Nse Ufot of the New Georgia Project.
Despite such claims, Alito’s decision also seeks to downplay connections between partisanship and race.
“The spark for the debate over mail-in voting may well have been provided by one Senator’s enflamed partisanship, but partisan motives are not the same as racial motives,” he writes, citing a lower court’s ruling. “The District Court noted that the voting preferences of members of a racial group may make the former look like the latter, but it carefully distinguished between the two.”
Joshua Douglas, an election law professor at the University of Kentucky, said that Alito highlighting the district court’s findings in Arizona could hamper the Department of Justice case’s as well: “I think Georgia could make that same defense, and could point to this case and say, ‘it's politics, not race.’ … I do think it makes it harder for the DOJ lawsuit as well, given that language.”
The rulings come amid a broad push by Republican-led legislatures across the country to consider or enact new voting laws that would add restrictions on how voters access the ballot box, often in the name of “election integrity.” The proposals follow a sustained push by now-former President Donald Trump, who continues to spread lies about the 2020 election, insisting he won an election that he lost.
The decision Thursday was the court’s most closely-watched case involving the Voting Rights Act since 2013, when the justices handed down a 5-4 decision that critics said cut the heart out of the law by striking down the provision that required portions or all of 15 states to clear all changes to voting rules and procedures in advance with the Justice Department or a federal court.
If that part of the law, known as Section 5, remained in place, new voter ID requirements and changes to early voting would be much more difficult for many red states to adopt, particularly with Biden appointees in leadership at the Justice Department. The 2013 Shelby County decision did not strike down Section 5 specifically, but gutted it by removing the formula that determined which states needed to have changes precleared.
“Rarely has a statute required so much sacrifice to ensure its passage. Never has a statute done more to advance the Nation’s highest ideals. And few laws are more vital in the current moment,” Kagan wrote in her dissent. “Yet in the last decade, this Court has treated no statute worse.’
Many conservatve groups, meanwhile, celebrated the decision. Garrett Bess, the vice president for Heritage Action, said in a statement the ruling was a win for “election integrity and voter confidence.” Heritage has been a driving force behind many Republican legislatures’ push for new election laws, and the ruling could further embolden the group.
“State officials across the country should take note and work to enact similar policies in their states,” Bess concluded.
The cases decided Thursday involved challenges to a 2016 Arizona law banning collection of ballots by other than postal or election officials and to the state’s longstanding policy allowing counties to disregard ballots cast by voters who show up in person at the wrong precinct.
About 80 percent of Arizonans already cast their ballots by mail, so are not impacted by the out-of-precinct voting ban. However, during oral arguments in March, Justice Sonia Sotomayor said many Native Americans in the state don’t get mail delivery at their homes, and some Hispanics in rural areas lack cars to get to post offices that are often far away.
“If you just can’t vote for those reasons and … your vote is not being counted, you’ve been denied the right to vote, haven’t you?” she asked. “You’re denied something if you’re not given the right to vote, or it results in your denial from circumstances that the state could remedy easily.”
Under Trump, the Justice Department filed a brief that did not go as far as the state or the Republicans, but largely sided with their view. In February, with new officials in charge under President Joe Biden, the department withdrew its support for that brief.
However, at the arguments in March, Deputy Solicitor General Ed Kneedler stood by the Trump administration’s position that neither of Arizona’s challenged practices at issue in the cases violates the Voting Rights Act.
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