Local and state elected officials are praising a major decision of the U.S. Supreme Court this morning which will limit the ability to challenge elections under Section 2 of the Voting Rights Act, which prohibits discrimination on the basis of race, color, or certain other minority groups. In Arizona, liberal interests filed suit against the state over its laws authorizing the rejection of ballots cast in the wrong precinct, as well as certain prohibitions against “ballot harvesting,” the practice of collecting and delivering ballots on behalf of others.
The 6-3 majority decision in Brnovich v. DNC, written by Justice Samuel Alito, reverses an earlier ruling by the 9th Circuit Court of Appeals and, interestingly, references the Mobile vs. Bolden case, a 1979 Supreme Court argument over the city of Mobile’s three-member, at-large commission form of government. The Bolden case established that challenges under Section 2 require “discriminatory purpose or intent,” but otherwise, the cases are unrelated.
Alito wrote that Arizona law generally makes it “quite easy for residents to vote,” with an early voting period open 27 days before an election and counties where officials may either establish “traditional precinct models” or “voting centers,” where all voters in a county may obtain the ballot corresponding with the precinct where they are registered. Ballots rejected under the Arizona law accounted for less than .15 percent of those cast statewide in 2016, and affected less than 1 percent of minority voters. As long as state laws ensure elections are “equally open,” the Supreme Court found, they don’t meet the burden for challenge under Section 2 of the VRA.
“Section 2 does not deprive the states of their authority to establish non-discriminatory voting rules, and that is precisely what the dissent’s radical interpretation would mean in practice,” Alito wrote. “The dissent is correct that the Voting Rights Act exemplifies our country’s commitment to democracy, but there is nothing democratic about the dissent’s attempt to bring about a wholesale transfer of the authority to set voting rules from the States to the federal courts.”
Alito also dismissed the arguments for ballot harvesting, saying properly submitting a ballot to a qualified elector represents the “usual burdens of voting.”
State Rep. Matt Simpson (R – Daphne), said he was pleased by today’s announcement. Simpson, a former prosecutor, was one of many Republican elected officials from across the country who filed an amicus brief in the case in favor of the Arizona law.
“The integrity of our elections has to be maintained so that we can continue to have faith in our democracy and the rule of law,” Simpson said. “I joined this case to help make sure that the voting process remains free from interference and fraud, and I am pleased that the court upheld the Arizona laws to help protect the integrity of the ballot box.”
Currently, Alabama does not allow for ballot harvesting, but Simpson said he hopes the Supreme Court’s upholding of the Arizona ban will make sure the practice does not come to Alabama in the future.
“By taking a stand now, I’m hopeful that the Supreme Court will see this ballot harvesting process for what it is – a scheme to influence and undermine our election process,” Simpson said.
Similarly, Attorney General Steve Marshall joined 15 other states’ attorneys general to sign a brief in favor of Arizona.
“Today, the U.S. Supreme Court made clear that federal law does not bar common sense election integrity laws,” Marshall said in a statement. “Arizonans had decided to bar suspect actions like ballot harvesting, and the Supreme Court upheld that provision and others in light of Arizona’s ‘strong and entirely legitimate state interest in the prevention of fraud.’”
Justices Elena Kagan, Stephen Breyer and Sonia Sotomayor dissented, with Kagan writing, “Today, the Court undermines Section 2 and the right it provides. The majority fears that the statute Congress wrote is too ‘radical’—that it will invalidate too many state voting laws.”
She argued the decision “gives a cramped reading to broad language. And then it uses that to uphold two election laws from Arizona that discriminate against minority voters.” Kagan also referenced an Alabama-based case, Shelby vs. Holder, which stripped other provisions of the VRA in 2013, including one requiring some states to receive Department of Justice approval to change voting precincts, laws, and practices.
“Once Section 5’s strictures came off, states and localities put in place new restrictive voting laws, with foreseeably adverse effects on minority voters,” Kagan wrote. “On the very day Shelby County issued, Texas announced that it would implement a strict voter identification requirement that had failed to clear Section 5. Other States — Alabama, Virginia, Mississippi — fell like dominoes, adopting measures similarly vulnerable to preclearance review.”
In a statement from the Southern Poverty Law Center, Nancy Abudu, interim director of strategic litigation, said the laws upheld by the Supreme Court were “unnecessary and discriminatory.” She also suggested the Democratically controlled Congress could intervene.
The John Lewis Voting Rights Act, which was introduced in 2019 by U.S. Rep. Terri Sewell of Alabama and Vermont Sen. Patrick Leahy, seeks to restore Section 5 provisions and add new laws governing ballot access, voter ID, and redistricting, among other things. The bill passed the House last year but died in a Senate committee.
“Today’s decision makes clear Congress must step up again and ensure every American can cast a ballot and have it counted in future elections,” Abudu wrote. “Ultimately, with the Shelby decision gutting Section 5, the decision today undermining Section 2 and the difficulty in mounting successful voting rights litigation generally, the John Lewis Voting Rights Act needs swift reintroduction and passage at the federal level now more than ever. The federal government must clarify Section 2’s broad anti-discriminatory intent and restore Section 5’s guarantee of robust Justice Department oversight so states and jurisdictions that erect barriers to voting that harm voters of color have to clear their voting changes once again with the federal government.”
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