On Thursday, the U.S. Supreme Court's conservatives ruled 6-3 along ideological lines to strike a historic blow against the Voting Rights Act and overturn a 9th Circuit Court of Appeals ruling that had found that two voting laws passed by Arizona Republicans had both the effect and intent of discriminating against Black, Latino, and Native American voters. The ruling reversed the findings of intentional discrimination and will make it much harder to block laws that have a discriminatory effect on voters of color, bringing America one major step closer to reviving the legal regime of Jim Crow.
Consequently, the Supreme Court's ruling significantly increased the level of discriminatory effects that must be demonstrated for a voting law or procedure to violate the Voting Rights Act, opening the floodgates to a new national wave of Republican voter suppression laws that hide their racist intent but have clearly disparate effects based on race.
Last year, the 9th Circuit Court of Appeals blocked both GOP-supported measures: one that bars counting votes cast in the wrong precinct but in the right county, and another that limits who can turn in another person's absentee mail ballot on a voter's behalf.
Arizona had largely transitioned to mail voting even before the pandemic, but the 9th Circuit observed that only 18% of Native American voters receive mail service, and many living on remote reservations lack reliable transportation options. That led some voters to ask others in their community to turn their completed ballots in, which Republicans have sought to deride as "ballot harvesting" in an attempt to delegitimize the practice. The invalidated law had limited who could handle another person's mail ballot to just close relatives, caregivers, or postal service workers.
The 9th Circuit's ruling also invalidated a separate provision prohibiting out-of-precinct voting, in which a voter shows up and casts a ballot at the wrong polling place but in the right county on Election Day. Under the invalidated law, voters in such circumstances could only cast a provisional ballot, which were automatically rejected if it was later confirmed that the voter had indeed showed up at the wrong polling place.
The appellate court decision relied on Section Two of the Voting Rights Act, which prohibits laws that have a discriminatory effect against racial minorities regardless of whether there was an intent to discriminate. The finding of a discriminatory effect is critical because it's often much more difficult if not impossible to prove that lawmakers acted with illicit intent, whereas statistical analysis can more readily prove that a law has a disparate negative impact on protected racial groups.
It's this so-called "effects test" that is the key remaining plank of the Voting Rights Act following the Supreme Court's notorious 2013 decision in Shelby County v. Holder, which invalidated a requirement that many jurisdictions with a history of discriminatory voting laws had to obtain Justice Department approval to make any changes to voting. Some legal observers had warned before this latest decision that even if the effects test weren't formally struck down, the Supreme Court could make it so difficult to comply with the requirements to prove discrimination that the VRA would nevertheless become meaningless.
While the court did not strike down the rest of the foundation Voting Rights Act and deliver the worst-case scenario of ruling Section Two itself unconstitutional, their decision is still devastating to voting rights and could render what's left of the VRA dead in the water.
Between 20 years of frequent Republican minority rule in the presidency, Senate, House, and state legislatures, along with several Supreme Court decisions since 2013 dismantling most of the Voting Rights Act and protecting partisan gerrymandering, the liberal democracy that only came to America in 1965 with the VRA's passage has truly ceased to exist and given way to what experts call "competitive authoritarianism."
Elections still take place with all the trappings of democracy, but they are not truly free and fair. And when the oppressed party is nevertheless able to miraculously win control of the government, they are so overly constrained by unfair institutions such as courts stacked with partisans that they are unable to effectively enact their agenda, much like congressional Democrats are struggling to do right now.
If Democrats are serious about restoring a truly equitable, multi-racial democracy, the ball is entirely in Congress' court. Democrats have what may be their last, best chance before they could lose Congress next year. That entails passing a new Voting Rights Act; the For the People Act with its sweeping expansion of voting protections and ban on congressional gerrymandering; adding new states such as Washington, D.C. to end the disenfranchisement of American citizens and help rebalance the Senate to put an end to two decades of near-constant GOP minority rule; and expanding the Supreme Court itself.
To pass these reforms, Democratic holdouts such as Sens. Joe Manchin and Kyrsten Sinema must first stop clinging to the filibuster and either curtail or eliminate it, but it so far appears doubtful whether they will.
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