Today’s Supreme Court Cases Could Sound a Death Knell for Voting Rights

And that could spell big trouble for efforts to halt GOP voter suppression bills around the country

Today the Supreme Court will be hearing arguments in two consolidated cases around the sole remaining leg of the 1965 Voting Rights Act. The decision could have major implications for elections for years to come. Before I talk about today’s cases, a bit of history.

Eight years ago, the U.S. Supreme Court, in a bitterly contested 5-4 decision known as Shelby County, dealt the Voting Rights Act a heavy blow. Chief Justice Roberts, writing for the majority, held that Section 4(b) of the Act was unconstitutional. He ruled that the data which was used to determine which jurisdictions were covered by the Act were over 40 years old and therefore infringed on the principle of federalism and equal status of the states.

Roberts did note that the Act had been very successful at redressing voting suppression based on race: “Regardless of how to look at the record no one can fairly say that it shows anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the nation.” But he flipped this around to rule that this meant Section 4(b) of the Voting Rights Act was out of date and no longer could be applied as written.

Without new criteria established by Congress (which by the way is precisely what the John Lewis Voting Rights Advancement Act would provide but the GOP will not allow to pass), there was no way to determine which jurisdictions are subject to what’s called ‘pre-clearance”—meaning any proposed changes to voting law need to be approved by the Justice Department or a judge before they go into effect.

The result was predictable. This year, in the wake of the high minority voter turnout in the 2020 election, GOP legislators in 43 states have introduced over 253 pieces of legislation aimed at suppressing votes, especially among Black, Latino and Indigenous voters. It seems Roberts, critics say, took too early a victory lap over racially-tinged voter suppression. As the late Justice Ginsburg observed in her Shelby County dissent, tossing out the system “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.”

Now for today. The Supreme Court will hear arguments on a pair of cases that take aim at the last remaining leg of the 1965 Voting Rights Act: Section 2. That section prohibits voting practices that discriminate on the basis of race. At issue are two Arizona statutes that invalidated votes cast in the wrong precinct and forbade the practice of third-parties returning voters’ mail ballots, sometimes known derogatorily as “ballot harvesting.”

On their face, these two laws are perfectly neutral, their defenders say. And there should be nothing wrong with preemptively seeking to curtail voter fraud, even if there hasn’t been any widespread fraud proven anywhere. (I should note here, the repeated false allegations of a stolen election are now cynically being used to justify even greater voter suppression measures across the country.)

While the laws are facially neutral, in Arizona the GOP legislature knows exactly what it’s doing. As the Native American Right Foundation has noted, native reservations are often divided into chapter houses whose boundaries do not always align with the precinct boundaries of the state, leading some voters to wrongly believe they could vote at their chapter house. Under Arizona’s “wrong precinct” law, these votes would be tossed out on that technicality, even for a statewide or national race where the actual precinct doesn’t matter. 

In addition, Native American voters often lack traditional mailing addresses, are subject to unreliable mail delivery (especially given the self-inflicted problems with the USPS), and live farther from ballot dropboxes and county election offices than do white voters. Those factors mean that third-party ballot collection drives are critical tools to enfranchise hard-to-reach voters.

The Ninth Circuit agreed. Writing for an en banc panel in a 7-4 decision, Judge William Fletcher (who was my Constitutional law professor at U.C. Berkeley) applied a two-part test and found that the AZ laws 1) placed a significant disparate burden on racial minorities, and 2) resulted from social and historical conditions that were hostile to minorities’ voting rights. Judge Fletcher listed frequent changes in polling locations, confusing placement of polling locations, and high rates of residential mobility as factors in how minorities were impacted more by the “wrong precinct” laws. Similarly, Fletcher wrote that the ban on ballot collectors hurt minorities more because they are more likely to be poor, older, homebound or disabled; that they lack reliable transportation, child care and mail service; and that they often need help understanding voting rules.

In its papers and in an amicus brief from eleven Republican senators including McConnell, Cruz and Cotton, the GOP argues that Section 2 is unconstitutional as applied by the Ninth Circuit and would lead to a “wave of litigation” against “legitimate election integrity laws” across the country. This argument is deeply ironic given the explosion of such “election integrity laws” indisputably targeted at minority voters, from banning Sunday voting to eliminate successful “Souls to the Polls” campaigns in Black communities, to reductions or elimination of dropboxes and no-excuse absentee voting.

With a 6-3 conservative majority at SCOTUS, the fate of Section 2 is very much in doubt, even though Roberts in Shelby County had affirmed its importance by noting it was “permanent” and “applies nationwide.” Roberts spent years as a young attorney in the Reagan administration working to stop the expansion of Section 2, so conservatives are hoping they can get him to lower the boom entirely on it now that he is the Chief Justice. 

The GOP is no doubt hoping a favorable decision will come out in time to undermine or even lead to dismissal of the hundreds of lawsuits that Democrats and voting rights advocates will have filed by then to stop an avalanche of GOP voter suppression laws. Perhaps sensing this, the Biden administration has taken the unusual step of writing to the Court to say that it does not believe the AZ laws violated Section 2, even as it disavowed the Trump administration’s interpretation of that provision. The White House is likely hoping that the Court simply overturns the Ninth Circuit on these two cases in a limited way while preserving Section 2’s essential validity and constitutionality.

A ruling striking down Section 2 completely might give renewed urgency to pass the For the People Act and the John Lewis Voting Rights Advancement Act. But depending on how broadly such a ruling is written, it might also call into question the foundation of voting rights jurisprudence based on disparate impact on minorities.

A decision on these cases isn’t likely to be announced until the end of the term, but it could easily reverberate for years to come, and certainly into the next two election cycles.