As I recently wrote, Republicans in many states are trying to enact more restrictive voting laws with the intent of disenfranchising Democratic voters. The Voting Rights Act of 1965 had been the guarantor of voting rights for fifty years, until the Supreme Court gutted it in 2013.
You may recall that in Shelby County, Alabama v. Holder, Attorney General, et al., 570 U.S. 2 (2013) the Court declared sections 4(b) and 5 unconstitutional.[i] This ruling allows states to make radical changes to their voting laws without fear of being stopped. The court states that section 2 of the act provides a framework to contest bad laws, but that method is via lawsuits that generally come after the election. They are too late to protect the integrity of the upcoming election.
Well, now the Supreme Court is hearing arguments on Mark Brnovich, Attorney General of Arizona, et al., v. Democratic National Committee, et al. [ii] The DNC brought the suit in 2016 to challenge some discriminatory voting laws in Arizona. The two laws challenged are: a requirement that election officials discard ballots cast at the wrong location, and a law that prohibits “ballot harvesting”, where someone brings ballots to the polling place for others.
If you were concerned with election integrity, you would make sure misdelivered ballots were sent to their proper locations, not destroyed, and you would want to encourage the casting of valid ballots. These two rules clearly target elderly and minorities who cannot get to the polls or who make an honest mistake by dropping a ballot off at the wrong place.
Section 2 prevents any rule that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race.” The rule has a test that says, “based on the totality of circumstances,” racial minorities “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
Unfortunately, the Biden administration has told the court that it thinks these laws do not violate Section 2.[iii] It seems the feeling is that its effect aren’t limited to race.
Should Section 2 be “expanded” to cover situations like this? Well, when he worked for the Regan administration, Chief Justice Roberts wrote a memo opposing the expansion of Section 2.[iv]
This does not bode well for the use of Section 2 to protect voting rights. We need to get on Congress to get some legislation passed.
HR1,[v] a bill that has been introduced in the House is a sweeping voting rights bill that should be passed. We should all encourage our Representatives to pass the bill, and get our Senators on board as well.
The author[s] is solely responsible for this blog submission. It does not represent the position of the New York State Bar Association or its Committee.