"The Supreme Court Abandons Voting Rights" by The Editorial Board, The New York Times 7/1/2021
The 1965 Voting Rights Act was one of the most important pieces of legislation in American history. By outlawing racial discrimination in voting and imposing federal oversight in states with histories of discriminating, it finally enforced the 15th Amendment and marked the first time the nation could call itself a truly representative democracy. Until the last decade, the law occupied a sacred spot in the American legal system. In 2006, Congress reauthorized the law nearly unanimously.
Since then, the Supreme Court’s conservative majority has been dismantling it, piece by piece.
The latest blow came Thursday, when all six conservative justices voted to uphold two Arizona voting laws despite lower federal courts finding clear evidence that the laws make voting harder for voters of color — whether Black, Latino or Native American. One law requires election officials to throw out ballots that were cast in the wrong precinct; the other bars most people and groups from collecting voters’ absentee ballots and dropping them off at polling places.
Under Section 2 of the Voting Rights Act, which bars any law that discriminates on the basis of race, whether intentionally or not, the Arizona laws should have been invalidated. But the conservative justices dismissed the challenge because, they said, only a small number of people were affected. “The mere fact that 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,” Justice Samuel Alito wrote in an opinion joined by the other conservatives.
That is a dismissive wave of the hand at precisely the sort of evidence that Congress told voting-rights plaintiffs to present in court. As Justice Elena Kagan pointed out in a dissent longer than the ruling itself, small numbers can make a big difference. In 2020, for example, Joe Biden beat Donald Trump in Arizona by a little over 10,000 votes — fewer than the state threw out based on the out-of-precinct policy in two of the past three presidential elections.
Since the court is talking about “mere facts,” the conservative justices might have noted the mere fact that voting fraud, which lawmakers in a number of states claim they are trying to prevent with laws like the ones in Arizona, is essentially nonexistent. As one federal judge put it several years ago, such laws are akin to using “a sledgehammer to hit either a real or imaginary fly on a glass coffee table.”
That doesn’t appear to bother the conservative justices, who have given a free pass to state legislatures to discriminate, even as they demand more and more from voters trying to show that they are hurt by that discrimination.
This subverts the whole purpose of the Voting Rights Act, which was enacted because of the persistence of discriminatory state voting laws and policies, a point Justice Kagan made throughout her 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,” she wrote.
Those impulses have been on flagrant display over the past several years, as Republican-controlled legislatures across the country have raced one another to pass laws that make voting harder — whether through stringent voter-identification requirements, limits on early and absentee voting, hurdles to registration, indiscriminate purges of voter rolls and laws like Arizona’s. Many of these laws disproportionately hurt voters of color. Already this year, 28 laws restricting voting have passed in 17 states, according to a running tally by the Brennan Center for Justice.
The conservatives on the court choose to be oblivious to the function of these laws, perhaps because they and their colleagues created the conditions for them to thrive in the first place. In 2013, the court gutted the heart of the Voting Rights Act, Section 5, which had required states and localities with a history of discriminatory voting practices — including Arizona — to obtain approval from the federal government before changing or adopting any voting law.
Section 5 was by far the most effective way to prevent voting discrimination, but according to Chief Justice John Roberts — who has been working to hobble the Voting Rights Act since he was a junior lawyer in the Reagan administration — the list of offenders was out of date. “Things have changed dramatically,” he wrote in his 2013 majority opinion, pointing to the increase in Black voter registration and turnout in the years since the Voting Rights Act was adopted. It didn’t seem to occur to him that this increase was precisely because of the law, and not in spite of it. As if to drive home the point, Republican-led states that had been under federal oversight began imposing strict new voting laws within hours of the ruling.
After 2013, Section 2 was the only meaningful tool left in the Voting Rights Act — indeed, Chief Justice Roberts pointed out this fact as supposed consolation when the court-eliminated Section 5. But its medicine was never as strong. Lawsuits alleging violations under Section 2 can only be brought after a new voting law has passed, and may have been discriminating against voters for years. The suits are expensive and time-consuming, which deters most potential plaintiffs. Even when plaintiffs show incontestable proof of discrimination, as they did in Thursday’s case, the odds are stacked against them.
This is bad news for upcoming legal challenges to Republican-enacted voter restrictions in other states. Just how bad will depend in part on the outcome of a lawsuit the Justice Department filed last week against a sweeping new voting law in Georgia. The suit contends that the Georgia Republicans who passed it, upset at Democratic victories in the state’s presidential and Senate contests, intentionally targeted Black voters, who vote overwhelmingly Democratic. Proving intentional discrimination is a high bar, but Georgia’s lawmakers worked hard to make the job easier, passing all kinds of restrictions that disproportionately hurt Black voters.
Congress has been debating a bill that would restore the heart of the Voting Rights Act by reimposing federal oversight of voting laws in states that have repeatedly discriminated in the last 25 years. Thanks to blanket opposition by Republicans and the existence of the filibuster, which allows a minority of senators to block a bill with majority support, the bill is a dead letter — unless Democrats decide to end the filibuster.
Even that step would not turn back the anti-democratic tide, which grew into a wave during the Trump administration. In Georgia, Arizona and elsewhere, Republican lawmakers driven by demonstrable lies about fraud in the 2020 election are changing the rules around how votes are counted and certified. They are stripping power from officials, like the Georgia secretary of state, Brad Raffensperger, who did their jobs in 2020 and refused to succumb to pressure from Mr. Trump and his allies to “find” extra votes and overturn the results to help him win.
The strategy is so dangerous because it is so dull. It’s easy to be outraged by, say, making it a crime to give voters water while they wait in oppressively long lines to cast a ballot, as the new Georgia law does. It’s harder to get worked up about the arcane machinery of election administration. But these laws are of a piece with the voting restrictions being passed by the same lawmakers. Together, they are designed to keep Democratic-leaning voters away from the polls, and to the extent that fails, to deny victory to Democratic candidates, even when they win more votes.
The current conservative majority on the Supreme Court, led by Chief Justice Roberts, shows no interest in thwarting this attack on democracy and protecting Americans’ fundamental constitutional right to vote. The ball is in Congress’s court, and time is fast running out.
