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The Supreme Court Clearly Won’t Protect Voting Rights. But Congress Can.

Brnovich v. Democratic National Committee made the need clearer than ever.

Bill Chizek

This piece origin­ally appeared in the Wash­ing­ton Post

The Supreme Court on Thursday delivered a severe blow to a crown­ing achieve­ment of the civil rights move­ment and the nation’s best defense against racially discrim­in­at­ory voting laws, the Voting Rights Act of 1965. The court’s ruling in Brnovich v. Demo­cratic National Commit­tee makes it substan­tially harder for voters to chal­lenge such laws, hack­ing away at federal courts’ powers to protect Amer­ic­ans from efforts to impede their access to the ballot box. It’s the latest sign that if the voting rights of all Amer­ic­ans are to be defen­ded, Congress, not the nation’s highest court, will have to provide that defense.

The case concerns two provi­sions of Arizon­a’s voting laws under Section 2 of the Voting Rights Act. One of these said that someone who cast their vote at the wrong precinct would have their entire ballot tossed out, even for races such as pres­id­ent or governor, where precinct would not be a factor. The other restric­ted the circum­stances under which vote-by-mail ballots could be turned in on behalf of a nonre­l­at­ive neigh­bor or friend.

Last year, the U.S. Court of Appeals for the 9th Circuit found both policies to be discrim­in­at­ory because of the way they inter­act with the real-life condi­tions for minor­ity voters in the state. For example, a brief filed by the Navajo Nation noted: “Arizon­a’s ballot collec­tion law crim­in­al­izes ways in which Nava­jos histor­ic­ally parti­cip­ated in early voting by mail. Due to the remote­ness of the Nation and lack of trans­port­a­tion, it is not uncom­mon for Nava­jos to ask their neigh­bors or clan members to deliver their mail.”

The Supreme Court, by a 6-to-3 vote split between the court’s conser­vat­ives and liber­als, over­turned the lower court, find­ing the burden on voters of color to be too “modest” to viol­ate the Voting Rights Act in light of Arizon­a’s justi­fic­a­tions for the laws.

But the damage done by the opin­ion reaches far beyond Arizon­a’s voters. Depart­ing from preced­ent, which placed the “social and histor­ical condi­tions” created by race discrim­in­a­tion at the heart of its Section 2 analysis, the court major­ity, in an opin­ion writ­ten by Justice Samuel A. Alito Jr., chose to focus instead on a new set of “guide­posts.” Although the major­ity acknow­ledged that “differ­ences in employ­ment, wealth, and educa­tion” can enable some voting laws to have a dispar­ate effect, it essen­tially threw up its hands, because it may be “virtu­ally impossible for a State to devise rules that do not have some dispar­ate impact.”

The court’s guide­posts will make it much harder to chal­lenge discrim­in­at­ory laws. Because Congress last amended Section 2 in 1982, the major­ity poin­ted to voting prac­tices from 1982 as a bench­mark for “gauging whether the burdens imposed by a chal­lenged [voting] rule are suffi­cient” to warrant concern today under the VRA. Putting aside the fact that the Voting Rights Act in no way rati­fies 1982’s voting prac­tices, consider the implic­a­tions of this approach: Four decades ago, states didn’t use computers in elec­tion admin­is­tra­tion, and early or mail-in voting wasn’t as widely used. And across the coun­try in recent cycles, voters of color have become a greater segment of the elect­or­ate.

The court didn’t deny that voters of color were dispro­por­tion­ately affected, but it still gave Arizon­a’s current voting obstacles a pass, because those obstacles affect only a small number of voters over­all. The implic­a­tion: Discrim­in­a­tion can stand, so long as there’s only a little bit of it.

And the court made it harder to chal­lenge discrim­in­at­ory hurdles to some meth­ods of voting if other meth­ods are avail­able by saying that courts must consider these hurdles within the context of the “State’s entire system of voting.” In other words, an imped­i­ment to voting, even a racially discrim­in­at­ory one, might be okay if there’s a plaus­ible work­around avail­able. It means, for instance, that state legis­lat­ors seek­ing to elim­in­ate early voting on Sundays, when Black churches through­out the coun­try have often run success­ful souls-to-the-polls voter drives, could point to other means avail­able to vote as a justi­fic­a­tion.

As it has done in the past, the major­ity paid only lip service to the real­ity of voting discrim­in­a­tion, saying: “No one suggests that discrim­in­a­tion in voting has been extirp­ated or that the threat has been elim­in­ated.” But it both limited the tools avail­able to respond to that threat and created loop­holes, making discrim­in­a­tion like­lier to occur. As Justice Elena Kagan noted in dissent: “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.”

The timing could not be worse. Repub­lican legis­lat­ors in states across the coun­try have pushed a raft of increas­ingly aggress­ive new laws restrict­ing access to the ballot box, many that would affect voters of color.

The ruling also demon­strates the hollow­ness of assur­ances from congres­sional Repub­lic­ans who say exist­ing federal laws adequately protect Amer­ic­ans’ voting rights. Senate Minor­ity Leader Mitch McCon­nell (R-Ky.) publicly opposed a proposed bipar­tisan effort to restore the Voting Rights Act of 1965 to full strength, saying it was “unne­ces­sary,” because “it’s against the law to discrim­in­ate in voting on the basis of race already.” Just last week, he and all his fellow Repub­lican senat­ors used the fili­buster to block debate on the For the People Act, which would strengthen voting rights across the coun­try.

Federal courts have for decades played a vital role in protect­ing voting rights for all Amer­ic­ans. But instead of serving as a bulwark against efforts by politi­cians to target disfavored voters, the court, led by Chief Justice John G. Roberts Jr., has in recent years stead­ily under­cut voting rights.

In 2008, the Roberts court upheld the consti­tu­tion­al­ity of an Indi­ana voter ID law imple­men­ted on the basis of nonex­ist­ent voter fraud. In the 2013 decision in Shelby County v. Holder, the court gutted the Voting Rights Act’s essen­tial provi­sion requir­ing juris­dic­tions with a history of discrim­in­a­tion to obtain federal govern­ment “preclear­ance” for any changes to their voting policies to ensure they weren’t discrim­in­at­ory.

Now, discrim­in­at­ory policies like Arizon­a’s are not only unob­struc­ted by preclear­ance, but they’re also upheld by the same court that did away with the preclear­ance require­ment. (Indeed, the third-party ballot-collec­tion prohib­i­tion at issue in Brnovich was with­drawn in 2011 during a preclear­ance review after Arizon­a’s elec­tions director admit­ted that the provi­sion was “targeted at voting prac­tices in predom­in­antly Hispanic areas.”) In the wake of Shelby County, laws restrict­ing voting access prolif­er­ated across the coun­try.

For decades, Section 2 enabled chal­lenges to laws and prac­tices that created racial dispar­it­ies in voting access, consid­er­ing all the relev­ant circum­stances. In Brnovich, the court signi­fic­antly blun­ted that tool. It did so in the midst of a deluge of new state legis­la­tion making it harder to vote, and on the cusp of a new redis­trict­ing cycle that — thanks in part to other recent Supreme Court decisions — will prob­ably be rife with abuse.

Instead of wait­ing for a high court that has already shown its reluct­ance to protect voters from discrim­in­at­ory efforts, the legis­lat­ive branch can step in. Given the dearth of GOP support, this needed strength­en­ing of our voting laws will prob­ably require chan­ging the Senate’s fili­buster rules. That won’t be easy, as Senate Repub­lic­ans have already used the fili­buster to block debate on the For the People Act, and the John Lewis Voting Rights Advance­ment Act enjoys only the barest of bipar­tisan support. But Thursday’s decision raised the stakes: If Congress will not act, it will leave voters of color increas­ingly vulner­able to efforts to exclude them from our demo­cracy.