The Court rejected evidence showing the laws disproportionately harmed voters of color and weakened the Voting Rights Act of 1965, all but giving Republican lawmakers across the country the green light to continue passing voter suppression laws.
If you’re a Black, Latino, or Native American voter in Arizona, casting your ballot just got a little bit harder, as the conservative-controlled US Supreme Court on Thursday upheld Arizona’s laws restricting third-party ballot collection and out-of-precinct voting.
In doing so, the Court rejected evidence showing the laws disproportionately harmed voters of color and weakened the Voting Rights Act of 1965, all but giving Republican lawmakers across the country the green light to continue passing voter suppression laws.
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The 6-3 vote fell along party lines, with all six conservative justices voting to uphold the restrictive laws, even as a lower court held they discriminated against voters of color. Justice Samuel Alito wrote the majority opinion, while Judge Elena Kagan dissented on behalf of the court’s three liberal judges.
The ruling is just the latest blow for voting rights advocates, coming one week after Senate Republicans blocked HR1 / S1, the For the People Act. The bill would have protected voting rights, made voting more accessible and convenient for Americans, and negated many state-passed voter suppression laws.
The Cases in Question
The cases involved two voting restrictions in Arizona; the first bans anyone but a voter’s family member or caregiver, or an election official, from collecting and returning early ballots to polling places. The second discards ballots of those who voted at the wrong precinct, even votes in statewide races that all Arizona voters participated in.
The Democratic National Committee (DNC) argued that the laws disproportionately impacted the state’s Native American, Latino, and Black populations, in violation of Section 2 of the Voting Rights Act of 1965, which prohibits any “standard, practice, or procedure . . . which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”
Arizona Attorney General and US Senate candidate Mark Brnovich defended the laws, claiming that states must maintain their authority to enact “commonsense election integrity laws.”
RELATED: Mark Brnovich Announces Bid for US Senate. Here’s What He Did as Arizona’s Attorney General.
The US Court of Appeals for the Ninth Circuit in San Francisco sided with the DNC last year, with Judge William Fletcher pointing out that in 2016, Black, Latino, and Native American voters were about twice as likely to cast ballots in the wrong precinct as were white voters. The reasons for this included “frequent changes in polling locations; confusing placement of polling locations; and high rates of residential mobility,” Fletcher wrote.
He also noted that the ban on ballot collectors disproportionately harmed voters of color. “In urban areas of heavily Hispanic counties, many apartment buildings lack outgoing mail services,” Fletcher wrote. “Only 18 percent of American Indian registered voters have home mail service. White registered voters have home mail service at a rate over 350 percent higher than their American Indian counterparts.”
Kagan made the same arguments in her dissent, highlighting that between 2008 and 2016, Arizona threw out nearly 40,000 out-of-precinct votes, far more than any other state in the country. “Arizona is the national outlier in dealing with out-of-precinct votes, with the next-worst offender nowhere in sight,” she wrote.
Despite her blistering dissent, Kagan was overruled by her conservative colleagues in a decision that has massive consequences for voting rights.
“The Voting Rights Act was passed to protect the right to vote and to fight against racial discrimination,” Arizona Secretary of State Katie Hobbs, a Democrat, said in a statement. “The Supreme Court weakened one of our country’s landmark civil rights laws. It is truly a sad day for the future of our democracy.”
Why This Matters
The Voting Rights Act of 1965 banned racially discriminatory voting laws. The law was passed during the Civil Rights era and was renewed five times, most recently in 2006. But in 2013, the Supreme Court’s ruling in Shelby County v. Holder effectively gutted Section 5 of the law, which required states with a history of discrimination to get any voting changes “precleared” by the federal government.
In his opinion, Chief Justice John Roberts argued that federal oversight was no longer necessary in the nine, mostly Southern states, thanks to the progress that had been made in combating discriminatory voting laws. In the years since Section 5 was weakened, several states have taken advantage of Roberts’ ruling and enacted barriers to voting—a fact Kagan noted in her dissent.
“Efforts to suppress the minority vote continue,” she wrote. “The problem of voting discrimination has become worse since that time—in part because of what this Court did in Shelby County.”
In weakening Section 5 of the landmark voting law, the Court’s 2013 decision forced voting rights advocates to lean on Section 2 to challenge voter suppression laws. Section 2 allowed plaintiffs the chance to challenge restrictive state voting laws if they could prove the laws were enacted with either:
- the intent of making it more difficult for voters of a certain race to vote; or
- had the practical impact of denying or limiting the ability of voters of a certain race to vote.
On Thursday, the conservative Court dealt a major blow to Section 2, making it even more difficult to challenge the kinds of voter suppression laws passed in Republican-led states all across the country.
“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 designed to bring about ‘the end of discrimination in voting.’”
Many legal experts agreed with Kagan’s analysis.
“The conservative Supreme Court has taken away all the major available tools for going after voting restrictions,” Rick Hasen, professor of law and political science at UC Irvine, wrote after the Court’s decision.
And there are many voting restrictions. As of mid-May, state lawmakers have introduced at least 389 bills with restrictive provisions in 48 states, including nearly two dozen in Arizona, according to the Brennan Center for Justice.
In Arizona, Gov. Doug Ducey, a Republican, recently signed a law that will require counties to remove mail-in voters from their early voting list during odd-numbered years if they do not cast a ballot by mail for two election cycles in a row and fail to respond to a notice from election officials within 90 days. The law could have a significant impact on voter turnout, as Arizona’s vote-by-mail system is incredibly popular—nearly 90% of voters cast their ballots that way in 2020 amid the coronavirus pandemic.
The law was opposed by leaders of the Arizona faith and business communities, and activists and Democrats fear that SB 1485 could push between 100,000 and 216,000 voters, many of whom are Black and Latino, off what was previously known as the Permanent Early Voting List. That list will now be called the Active Early Voting List because of the law.
“Voting is a sacred expression of our shared commitment to a democratic government and a free civil society,” Alphonso David, president of the Human Rights Campaign, said in a statement. “Today’s decision has opened the door for state lawmakers across the country to more easily suppress our right to a free and fair election.”
President Joe Biden also criticized the conservative Court’s 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 in a statement.
But the president and advocates also made clear that this most recent defeat only increases the urgency of passing the For The People Act.
The bill passed the House earlier this year, and while all 50 Senate Democrats, including Arizona Sens. Mark Kelly and Kyrsten Sinema, voted to begin debate on the For the People Act last week, not a single Republican voted for the bill. Instead, they filibustered the bill, which would have:
- Made Election Day a national holiday;
- Enabled automatic, online, and same-day voter registration;
- Required at least 15 early voting days, including weekends;
- Allowed any voter who wants to cast a ballot by mail to do so; and
- Banned voter purges.
Biden and his allies also emphasized the importance of passing the John Lewis Voting Rights Act, which would restore and strengthen the parts of the Voting Rights Act that were undermined by the Court in Shelby County v. Holder.
“Today’s decision also makes it all the more imperative to continue the fight for the For the People Act and the John Lewis Voting Rights Advancement Act to restore and expand voting protections,” Biden said. “The Court’s decision, harmful as it is, does not limit Congress’ ability to repair the damage done today: it puts the burden back on Congress to restore the Voting Rights Act to its intended strength.”
To pass those bills, however, Democrats will all but certainly need to eliminate the filibuster, an arcane Senate rule that essentially requires 60 votes to pass legislation. While most Senate Democrats have expressed a willingness to end or change the filibuster, Sinema is one of two Democrats who has repeatedly refused to entertain the idea.
Sinema criticized the Court’s ruling on Thursday, saying it would “hurt Arizonans’ ability to make their voices heard at the ballot box.” She also called on Congress to pass the John Lewis Voting Rights Act, but did not acknowledge that doing so would require reforming her position on the filibuster.
Unless that position changes, and unless voting rights laws are passed, racist restrictions on voting could once again become the norm, as Kagan made clear in her dissent: “Weaken the Voting Rights Act, and predictable consequences follow: yet a further generation of voter suppression laws.”