How courts may respond to voter suppression bills: law professor

All over the United States — from Arizona to Iowa to Texas — Republicans in state legislatures have been aggressively pushing voter suppression bills. And the American Civil Liberties Union has been vehemently outspoken against GOP efforts to make voting more difficult. It remains to be seen what types of legal battles will result from these anti-voting bills in the months ahead, but law professor Kimberly Wehle weighs in on how the courts may respond to these bills in an article published by The Bulwark on June 14.

The Never Trump conservative, who teaches at the University of Baltimore Law School and is a former assistant U.S. attorney, explains, "There will presumably be many court battles over the new legal barriers to the polls enacted by Republican legislatures across the country. But barring passage of legislation pending before Congress, it's the Supreme Court that once again holds the cards when it comes to the success or failure of those lawsuits."

Wehle notes that the For the People Act, a comprehensive voting rights bill that Democrats passed in the U.S. House of Representatives earlier this year, is "dead in the water" in the U.S. Senate — where centrist Democratic Sen. Joe Manchin has come out against it. Even if the filibuster were abolished — something that Manchin and fellow centrist Democrat Sen. Kyrsten Sinema of Arizona both oppose — House Resolution 1, a.k.a. the For the People Act, wouldn't have enough votes to pass.

"Its more modest counterpart, HR 4 — the John Lewis Voting Rights Advancement Act — is relatively palatable across the political spectrum," Wehle observes. "It's the very fix to the Voting Rights Act that the U.S. Supreme Court invited when it destroyed the central piece of that legislation in 2013. But thus far, it hasn't gotten past congressional Republicans. The courts are left to clean things up."

The law professor explains why the Civil Rights Act of 1871 and the Voting Rights Act of 1965 are important to the voting rights debate taking place in 2021.

"For voting disparities, the relevant federal causes of action lie primarily in the Civil Rights Act of 1871, 42 U.S.C. § 1983, which allows individuals to sue states for violations of a number of constitutional rights, and in the Voting Rights Act (VRA) of 1965," Wehle notes. "States have their own constitutions and their own sets of legislation containing private causes of action that also operate to protect voting rights to varying degrees. Congress passed the VRA because, despite the Fifteenth Amendment's ban on discrimination on the basis of 'race, color, or previous condition of servitude,' states began passing cynical laws to keep non-Whites from voting anyway. Section 201 of the VRA thus bans procedures like literacy tests, knowledge and educational achievement tests, and requirements of good moral character for voting."

Wehle points out that "for years," the Section 5 of the Voting Rights Act "required states with bad histories of voter suppression to run new laws by the Justice Department for what was called a 'preclearance' process" — but the U.S. Supreme Court "scrapped that in 2013 by a 5-4 vote in Shelby County v. Holder."

"With HR 4, Congress would reinstate it," Wehle observes. "Senate Minority Leader Mitch McConnell opposes even that much. Despite its ruling in Shelby County, there was consensus on the Court that the preclearance process worked well to increase voter participation in American elections…. With Section 5 gone, the work of protecting voters shifted to Section 2 (of the Voting Rights Act)."

Defenders of voting rights are anxiously awaiting the U.S. Supreme Court's decision in the case Brnovich v. Democratic National Committee.

Wehle explains, "Section 2 has been used primarily to challenge attempts to dilute the relative strength of votes cast by communities of color through maneuvers like redistricting — not to challenge voter-suppression laws, which was Section 5's job. By ironic coincidence, the fate of Section 2 as a means of litigating voter suppression questions is now in the hands of the U.S. Supreme Court again in Brnovich v. Democratic National Committee. A decision is expected any day now."

The law professor adds, "Brnovich involves a challenge under Section 2 of the VRA and the Fifteenth Amendment (to the U.S. Constitution) to two controversial Arizona laws: one that totally cancels provisional ballots that are cast mistakenly outside a voter's assigned precinct on Election Day, and another that permits only certain persons — e.g., family members — to handle another person's completed early ballot."

Wehle believes it that "the Supreme Court's conservative majority is unlikely to strike down these Arizona laws."

"Unfortunately," Wehle writes, "the voters' losing streak will continue in the courts if the unelected Supreme Court weakens or destroys Section 2 as a tool against voter suppression — just like it did to Section 5."