The following is adapted from oral testimony given Friday before the House Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, and Civil Liberties about ways to address the effects of the Supreme Court’s decision in Brnovich v. Democratic National Committee.
We are witnessing a wave of restrictive voting laws more significant than we have seen since the Voting Rights Act was signed into law. And while the Supreme Court’s 2013 Shelby County v. Holder decision helped open the floodgates to efforts to roll back voting rights, the Brnovich decision weakened one of the tools we might otherwise use to stem the tide.
So, Congress must once again meet this moment, as it has in the past — in 1965 and in 1982 — to protect voters from discrimination. To provide truly comprehensive protection, Congress must restore the Voting Rights Act to its former glory and pass the For the People Act to set a new standard for open elections, free from discrimination.
I will start with a brief explanation of the harm the Brnovich decision does and then turn to potential remedies.
The first mistake of the Brnovich majority is that it departs from decades of precedent and shifts the focus of its analysis away from what Congress intended, which was an evaluation of how voting rules interact with the effects of race discrimination. That is the purpose of the “totality of the circumstances” test in Section 2. But the Court shifts its focus to a set of five so-called “guideposts” for courts to consider moving forward.
In my written testimony, I explain in detail how each of these guideposts will lead courts astray from the cause of identifying and rooting out discrimination in voting. The short version is that they direct courts to view with skepticism characteristics that are in reality the hallmarks of modern-day vote suppression.
The reality is that state legislatures are not hacking, but slicing away at voting rights from every angle. They shave away access to mail voting; they cut back on in-person voting; they trim voters from the rolls through faulty purges. While any one slice might appear minor, the end result is death by a thousand cuts. This is how states, in the words of the Fourth Circuit Court of Appeals, target voters of color “with almost surgical precision.”
But the majority in Brnovich seems willing to accept discriminatory burdens so long as they do not deny the right to vote to too many. The majority doubts a restriction on one method of voting discriminates if there are other methods available. If a state’s voting laws are better than the status quo in 1982, when key amendments were made to the Voting Rights Act, the majority suggests it will be hard-pressed to find them discriminatory.
What’s worse, the majority is far too quick to accept the excuse states give for these discriminatory laws in each and every instance: fighting fraud. The Court accepts at face value the lie that currently threatens to undermine our democracy.
My colleagues and I make it our mission to defend the right to vote. This decision, following on Shelby County and others, leaves us facing unprecedented attacks with a blunted tool for fighting back. So what’s the solution?
To remedy the harm done by Shelby County, Congress should restore preclearance by passing the John Lewis Voting Rights Advancement Act.
But now, to truly restore our power to push back on discriminatory laws, Congress must strengthen Section 2.
First, Congress must ensure that the Supreme Court’s wrongheaded guideposts won’t prevent the identification of truly discriminatory practices. Congress could spell out the considerations that are relevant to determining whether a rule produces discriminatory results, making explicit the central role that historical and current discrimination must play in courts’ analysis of Section 2 claims. The Senate Factors, which were created in 1982, helped guide the courts for decades. But Congress could also elaborate upon them.
Second, Congress must make clear that the true threat to our democracy is race discrimination, not widespread voter fraud. In order to rightsize deference to states, Congress could require courts to consider the tenuousness of the relationship between the policy at issue and the stated goal. Or it could require states to prove that the rule in question actually serves the goal.
Finally, it is critical that Congress make explicit that there is no tolerable level of race discrimination.
With these goals in mind, Congress can remedy the harm done to the Voting Rights Act.
But, restoring the Voting Rights Act is not enough. Congress must also pass the For the People Act and create a new national standard for voting. This will take some common tactics for restricting voting off the table. We applaud the House for doing its part on this already.