Republicans Want To Gut What’s Left Of The Voting Rights Act. Will SCOTUS Take The Bait?

A case challenging two Arizona election policies could undermine DOJ’s ability to enforce the VRA.
WASHINGTON, DC - FEBRUARY 04: Supreme Court Justice Neil Gorsuch (L) and Supreme Justice Brett Kavanaugh attend the State of the Union address in the chamber of the U.S. House of Representatives on February 04, 2020 ... WASHINGTON, DC - FEBRUARY 04: Supreme Court Justice Neil Gorsuch (L) and Supreme Justice Brett Kavanaugh attend the State of the Union address in the chamber of the U.S. House of Representatives on February 04, 2020 in Washington, DC. President Trump delivers his third State of the Union to the nation the night before the U.S. Senate is set to vote in his impeachment trial. (Photo by Mario Tama/Getty Images) MORE LESS
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March 1, 2021 9:58 a.m.

With a case being heard by the Supreme Court Tuesday, Republicans and their allies will get to see just how far a Trumpified Supreme Court could be willing to go to kneecap voting rights enforcement across the country.

That case concerns two policies that restrict access to the ballot box in Arizona. But the question of whether the justices will reverse the appeals court ruling blocking them has taken a back seat to concerns that the 6-3 conservative court will further gut the Voting Rights Act and make it much more difficult to challenge election practices that disproportionately impede minority voters’ ability to cast ballots.

That the case is even before the Supreme Court is causing anxiety for voting rights advocates, who were less than enthusiastic about Democrats’ decision to bring the lawsuit and then appeal earlier decisions upholding the policies.

They fear that the case will be used to diminish a VRA provision known as “Section 2,” which has been the chief mechanism for enforcing the landmark civil rights law since the Supreme Court’s Shelby County decision. The 2013 Shelby ruling undermined a separate part of the law that required that parts of the country with a history of voter discrimination on the basis of race get federal approval for changes to their election practices. Without the VRA “preclearance” process, the Justice Department has had to rely more on Section 2 to police voting policies that are racially discriminatory, and it’s been a crucial tool for private entities, who can bring Section 2 cases as well.

The lawsuit that is now before the Supreme Court targets Arizona’s 2016 ban on most third-party mail-ballot collection, as well as the state’s long standing policy of throwing out entire ballots that are cast in the wrong precinct. (Many states have a similar rule, while in other places, an out-of-precinct voter’s ballot counts for non-local races.)

The Arizona Republican party is opposing the state Democrats in the case, which also pits Arizona’s Republican Attorney General Mark Brnovich against its Democratic Secretary of State Katie Hobbs.

A trial judge and a three-judge appellate panel both upheld the policies. But the full U.S. Court of Appeals for the 9th Circuit reversed those decisions, prompting the Republican appeal to the Supreme Court.

The 9th Circuit said both policies violated the so-called “results test” of Voting Rights Act’s Section 2. It also said that the ballot collection ban was passed with the intent to discriminate, in violation of the VRA, and that it also ran afoul of the Constitution’s 15th Amendment.

But how the Supreme Court handles the 9th Circuit’s use of the “results test” stands to be the most consequential aspect of the case. Proving that a restrictive measure was passed with the intent to discriminate is extremely difficult; wily lawmakers don’t usually lay out those kinds of motivations in written communications or public statements. So voter advocates, Democrats and some administrations have relied on amendments to the VRA made in 1982 barring practices that result “in a denial or abridgement of the right”to vote for minority voters. The amendment says the assessment of whether a policy has a discriminatory effect on minority voters should be based on “the totality of circumstances” and whether they show that a protected group is being given “less opportunity” than other parts of the electorate to participate in the democratic process.

The Supreme Court has laid out a clear way for understanding that standard in a redistricting context. But how Section 2 applies in so called vote-denial cases — i.e. challenges to measures dictating how, where and when voters cast ballots — has yet to be addressed directly by the high court.

Because the Arizona case is giving the Supreme Court the chance to do so, Republicans and other groups known for pushing restrictive voting laws have pressed the court to limit the ways the VRA can be used to block discriminatory laws.

The Arizona Republican Party is making what are perhaps the most aggressive arguments. It argues that Section 2 should apply only to redistricting cases or for measures that restrict who can register to vote. For policies laying out the time, place, or manner for elections, Section 2 should be off the table, the state GOP said in its brief, which suggested applying Section 2 to election regulations would be unconstitutional.

The Brnovich brief makes similarly sweeping claims about Section 2, arguing that the standard the court developed for applying the results test in redistricting cases should not be deployed in vote-denial cases. (He also suggested that results test should be scaled back in redistricting contexts as well, but said that this was not the appropriate case for that review.)

“They proposed a number of ways that the court should limit section two and both their arguments are quite radical, really,” said Sean Morales-Doyle, the deputy director of the Brennan Center’s Voting Rights and Elections Program, on a press call last week.

In a friend-of-the-court brief, a Republican governors’ group advocated for time restrictions on what can be analyzed in a Section 2 case, so that such a review is limited to “the current conditions of a particular state, rather than punishing a state for its distant past.”

The Justice Department, while under the Trump administration, did not go as far as state Republicans in its arguments for how Section 2 should be scaled back. But its interpretation of Section 2 still would make cases much more challenging to win when they’re targeting policies for their disproportionate impact on minority voters.

The Trump DOJ pushed for a higher standard of causation between a restrictive measure and how it was impacting minority voters, arguing that the impact must be found “proximate” to the measure itself in order for challengers to win.

“The more proof that you make the plaintiffs show of the connection between the challenged practice and the history of discrimination and the effect on minority rights, the tougher you make it for plaintiffs to win those cases,” UC Irvine election law professor Rick Hasen told TPM.

Hasen said that the Texas voter ID law that was blocked by several courts — including the very conservative 5th Circuit — would have probably survived under the Trump DOJ standard.

After President Biden’s inauguration, the Justice Department sent the court a letter saying it no longer stood by the Section 2 arguments put forth by the prior administration, but still backed the conclusion that the Arizona measures comply with the VRA’s “results test.”

That pretzel twist of a position was interpreted to be some as an attempt to avoid a sweeping loss for voting rights, by encouraging a narrow ruling that reinstates the restrictive measures but doesn’t limit Section 2’s broader use.

Even some of the briefs that ostensibly support the 9th Circuit’s decision spend little time attacking the substance of Arizona’s policies. They focus instead on pushing back at the Republican efforts to narrow the VRA’s scope.

“The briefs look like they’re doing triage,” Hasen said. “There’s very little attempt to justify a finding [in favor of striking down the two practices] and much more an effort to save the vote-denial standard for much more serious cases.”

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