The U.S. Supreme Court on Tuesday will hear a case that could allow the conservative majority of the court to inflict a major blow on the most powerful remaining provision of the Voting Rights Act, the 1965 Act, to prevent racial discrimination in the vote.
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The case, Brnovich v Democratic National Committee, involves a dispute over two Arizona measures. One is a 2016 law that prohibits anyone other than a close family member or caregiver from collecting absentee ballots, sometimes called the harvest of the ballot. The second is a measure that requires officials to reject votes in the wrong environment, even if the voter cast a vote in the nationwide race.
Arizona rejected more than 38,335 votes cast in the wrong area between 2008 and 2016 and minority voters were twice as likely as white voters to reject their ballots, the DNC noted in its statement. Minority voters, including the Native American population of the state, are unduly disadvantaged by the ban on collecting the ballot because they are more likely to lack a reliable e-mail service.
The DNC argues that the policy violates section 2 of the Voting Rights Act, which prohibits voting laws that discriminate on the basis of race. A trial court ruled in 2018 that the policy did not violate the law, and a three-judge panel in the U.S. Court of Appeals for the Ninth Circuit later upheld the ruling. But the full circle voted to repeat the case and last year found that the policy violated the Voting Rights Act. Now, Arizona Attorney General Mark Brnovich, a Republican and Republican party in Arizona, is appealing the ruling to the U.S. Supreme Court.
And while the facts in the case are about Arizona, the interests could go much further. Brnovich and the Republican Party in Arizona are appealing to the court to use the case as a vehicle for disclosing a narrower view of Article 2 than is currently in use.
With such a ruling, one of the most powerful instruments that the voting rights groups have will be removed against discriminatory voting laws. Section 2 was elevated following the 2013 Supreme Court ruling in Shelby County v Holder, which dismisses another provision of the Voting Rights Act that certain places with a history of voting discrimination, including Arizona, are required to enact laws at submit to the federal government for prior approval.
“Without explanation in the books, we should all have relied more heavily on Article 2 to address racial discrimination in the vote,” said Sean Morales-Doyle, a lawyer at the Brennan Center for Justice, who authored an amicus commission helped, said. the case in support of the position of the DNC. “If section 2 is limited, we have even fewer tools.”
Losing the full power of Article 2 will also make it harder for litigants, including the Department of Justice, to challenge the wave of restrictive bills bubbling up in Georgia and other state legislatures that will make it harder to voice, said Deuel Ross, a lawyer at the NAACP Legal Defense Fund (LDF), who also filed an amicus order in support of the DNC.
The case comes down to a high court where conservatives now have a mighty 6-3 majority that seems increasingly hostile to voting rights. It repeatedly refused to extend access to the vote during the pandemic last year. And since its ruling in Shelby County v Holder, the court has given the green light to aggressive purge of voters and serious bias.
Brnovich and the Arizona GOP want the Supreme Court to clarify the approach the courts should take when judging or violating section 2 of a law. to prove that a law is in conflict with Article 2. In general, he argues that courts should use an approach to evaluating Article 2 claims that would make it more difficult to implement face-neutral measures, such as laws on voters. to challenge that which does not explicitly complicate it. for a specific group to vote. And if minority voters can prove that a law has a “substantially divergent impact” on them, Brnovich argues, they should be expected to show that inequality is directly related to voting policy.
But discriminatory voting laws often do not work that way. There is a long history in the US of using policies considered in a vacuum as racially neutral, because they apply to everyone but are designed to interact with economic, social and other factors to make it making it harder to vote, LDF writes in his amicus short. The group said literacy tests and property requirements, the repressive devices used in Jim Crow, applied to everyone, but it made it harder for black voters to register.
“You are talking about two very specific voting laws that have a very clear connection with the history of discrimination against indigenous, black and colored voters in this state,” said Allison Riggs, the interim executive director of the Southern Coalition for Social Justice. who submitted an amicus assignment in support of the DNC’s position. “Poverty, lack of transport, lack of access to flexible employment and living wages are the reasons why voting is important and that the collection of ballot papers, especially in indigenous countries, is so important. ”
One of the most interesting voices in the case is that of Chief Justice John Roberts. When he wrote the opinion of Shelby in 2013, he specifically pointed to Article 2 as one of the most powerful tools that still exists to combat discrimination against votes. But in 1982, when he was a young lawyer in the Department of Justice, he strongly advocated extending Article 2 and limiting it only to cases where there was evidence of intentional discrimination. Roberts eventually lost the argument.
Democrats argue in their mandate that Arizona proposes an “too narrow” way of looking at Article 2. The Ninth Circle, Democrats say, analyzed the measures appropriately and found that it excessively affected minority voters and combined with social and historical conditions in Arizona to make it harder for voters to vote.
Richard Hasen, a law professor at the University of California, Irvine, noted in a blog post last month that litigants of suffrage were generally reluctant to move Article 2 claims. The Democratic Party, he wrote, in this case does not seem to have that concern, which gives Republicans an opportunity to narrow the law.
“Section 2 has done important work to curb some of the worst forms of voice denial in recent years, and it would be a great shame if this overreaction of the case would ultimately be the vehicle for the remnants of the crown jewel of the civil rights movement, ”he wrote in a post on SCOTUSBlog.
In December, the Department of Justice of Donald Trump submitted an amicus letter to support Brnovich and endorse a narrower framework for the interpretation of Article 2. But in February, Biden’s government filed a letter in court. The Justice Department said it still believes the Arizona measures do not violate the Voting Rights Act, but no longer support the framework for the interpretation of Article 2 proposed by the Trump administration.
There are several ways in which the court can decide in the case without weakening the scope of section 2. Morales-Doyle, the attorney at Brennan Center, said he hopes the court recognizes the climate surrounding elections and race in which they hear the case.
‘There’s a big story about what’s going on with our democracy and race in American society. The court will only weigh in now, ‘he said. “I think our hope is that the court sees it rather as an opportunity to affirm the values and protections we have in place for our democracy.”