The Supreme Court Steps on Voting Rights ... Again

The Supreme Court’s recent decisions to allow Arizona to invalidate votes cast in the wrong precinct and to prohibit “ballot harvesting” have continued its historical role in undercutting voting rights legislation.  To understand where the Court is taking us, let’s review the history of voting protections, including the Voting Rights Act of 1965, and the Court’s role in limiting them.

Passed right after the Civil War, the Fifteenth Amendment to the Constitution provides that 

[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.  [Along with the 14th Amendment], these Amendments also empower Congress to enforce their provisions through "appropriate legislation."  (Wikipedia)

During the Jim Crow era, these provisions were largely ignored.  In 1965 Congress passed  the Voting Rights Act, (VRA) which, along with subsequent amendments to the Act, finally enforced the 15th Amendment.

Section 2 of the VRA allows voters to sue if they believe a state or local government has limited their voting rights on the basis of their race, color or membership in a language minority group.

Section 5 required that nine states — along with many other smaller jurisdictions in the country — with a history of racial discrimination needed federal “pre-clearance” before implementing any changes in their voting laws.  

In 1982 the VRA was amended to make a “results test” explicit.  With the amendment, the act “prohibits any voting law that has a discriminatory effect irrespective of whether the law was intentionally enacted or maintained for a discriminatory purpose.”  Only discriminatory results matter.

In 2006 Congress reauthorized the VRA almost unanimously

In 2013 the Supreme Court in a 5 - 4 decision along ideological lines eliminated the pre-clearance provision of VRA’s Section 5.  Chief Justice John Roberts wrote, “our country has changed. … Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions,” legal verbiage suggesting that voting rights had progressed to the point that the pre-clearance provision was no longer necessary.  Roberts’s opinion revealed a remarkable blindness to the country’s structural racism and to Congress’s own determination only seven years earlier that the law was necessary.  

The extent of the Court’s ignorance was soon evident: The Guardian reported that

[immediately] after the decision, Republican lawmakers in Texas and North Carolina — two states previously covered by the law — moved to enact new voter ID laws and other restrictions. … Between 2012 and 2018, [for instance,] there were 1,688 polling place closures in states previously covered by … the Voting Rights Act.  … [Proof-of-citizenship and voter ID laws were also passed.]

Ruth Bader Ginsburg wrote in her dissent for the court: “Throwing out pre-clearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

The full impact of the 2013 decision may never be known.  Most of the changes in voting rights are made by local jurisdictions and are never brought to judicial review.

In 2019, again along ideological lines, the Court’s 5 – 4 conservative majority gave the green light to gerrymandering.  As I described here, gerrymandering allows states to expand one party’s Congressional delegation far beyond that party’s proportion of state-wide voters.  Racial gerrymandering had already been prohibited, but — because of the disproportionate number of Blacks, other minorities and poor people who vote Democratic — partisan gerrymandering often results in racial gerrymandering.  

Last month’s Supreme Court decision (by a 6-3 margin, again along ideological lines) continues the Court’s limitation of voting rights.  The ruling let stand those two laws enacted by the Republican Arizona state legislature that lower courts had found made voting harder for voters of color.  

The first of those laws required election workers to invalidate ballots that had been cast in the wrong precinct (for instance if a voter moved to a different voting district but cast their ballot at their previous polling place), even if the ballots were for state-wide and federal elections, where precincts didn’t matter.  

The second law prohibited “ballot harvesting,” denying campaign workers, activist groups, and others from collecting ballots and bringing them to the polls.  This restricted the voting potential of invalids, shut-ins and others by preventing outside help in casting their ballots.  In Arizona, this especially affected Native Americans, many of whom live in remote parts of the state far from polling places.

In accepting the two laws, the Supreme Court justices wrote that states’ rights to prevent fraud outweighed any impact on voting rights, despite the fact that there has been no significant voter fraud in Arizona or anywhere else in the United States, which the justices surely knew.

The practical impact of these two Arizona laws is unclear, but in a state where the eleven electoral college electors were decided by a mere 0.3% margin, they could have a major future impact.  More important, however, the decisions portend how the Court may rule upon the nearly 1000 state bills limiting voting rights proposed since the beginning of the year.  

A solid 6-3 conservative majority seems prepared to allow states to ignore the 1965 Voting Rights Act and the Fifteenth Amendment and pass laws permitting (or even requiring) certain kinds of discrimination in voting.  

While the Court has made decisions this year that have crossed ideological barriers, last month’s voting rights decision along with the 2013 and 2019 decisions demonstrate that the 6-3 conservative majority solidly and consistently favors state voting-right restrictions.  The For the People Act and the John Lewis Voting Rights Bill contain far stronger provisions than the Court has already ruled against.  Even if these bills can make it through Congress (Republicans are almost unanimously opposed), their eventual chances in this Supreme Court are not good.