The decision will come down in the last turbulent weeks of the court’s term, and supporters of voting rights fear the new conservative 6-3 majority will pick up where the court left off eight years ago and gut another provision of the historic law.
Since the decision in Shelby County v. Holder, states have moved forward with new laws, an effort further fueled by former President Donald Trump’s unfounded claims of widespread voter fraud in the 2020 presidential election.
For their part, Democrats have turned lately to a different section of the Voting Rights Act, Section 2, which bars regulations that result in racial discrimination. It has principally been used in the past for issues such as redistricting challenges.
“Section 2 is one of the only tools we have left to challenge discriminatory policies,” said Sean Morales-Doyle of the Brennan Center. “The wave of restrictive laws being introduced and passed in state legislatures across the country highlights once again how important it is to have a strong Voting Rights Act to protect voters.”
The case before the justices involves two Arizona regulations that a lower court held violated the Voting Rights Act.
One is a 2016 prohibition on assisting a voter with the return of her ballot. It’s a practice that civic groups in Arizona have used to help Native American voters in rural areas who do not receive postal service at their doorstep. The second is a longstanding practice of wholly discarding ballots that are cast at the wrong precinct rather than partially counting them.
Arizona’s out-of-precinct policy is among the strictest the nation because it discards votes for local candidates, but also for president, senators and members of the House of Representatives.
Unlike fights against voting restrictions in Georgia and Texas, however, Democrats are divided on whether the two Arizona laws should be allowed to stand. The Democratic National Committee argues the rules should fall, but the Biden administration told the court that the laws passed legal muster.
The larger fight in the case is about the standard that the court comes up with to deal with future challenges that are currently ricocheting through the lower courts.
“On the surface this case is about two relatively narrow practices in one state, but it could have quite broad implications for the application of the Voting Rights Act in the future,” the ACLU’s Dale Ho, who has filed a brief in the case opposing the laws, said a recent event hosted by the liberal Constitutional Accountability Center.
Michael Carvin, a lawyer for the Arizona Republican Party, for example, asked the justices to hold that no challenges that concern so called “time, manner, or place” restrictions could be brought under Section 2. That would green light many of the laws that are currently being passed in states like Texas and Georgia.
Texas, for instance, is pushing for a ban on after-hours voting, and a mandate to limit Sunday early voting as well as requiring voters requesting absentee ballots to provide their driver’s license number or Social Security number.
“If the Supreme Court weakens the Voting Rights Act as they are being asked to do, it will make it much harder to stop the kind of legislation we saw Texan lawmakers try to ram through over the weekend,” Morales-Doyle said.
Arizona’s Attorney General Mark Brnovich takes a more nuanced position than the state GOP, arguing that a Section 2 violation requires a showing that the law produces a “substantial” disparate impact. He told the justices during oral arguments that the laws at issue survive scrutiny because they are “commonsense” and “commonplace” and prevent voter fraud.
The justices did not seem interested in the standard put forward by Carvin but that still leaves open plenty of room to limit Section 2 with a ruling that on its face may not appear to be too sweeping but still have a dramatic impact.
Ho and others are worried that the court could issue a ruling, for instance, that required evidence that there is a significant racially disparate impact on voter turnout. Such a standard would be hard for challengers to satisfy because it is difficult to always make a direct connection between fluctuations in voter turnout based on a single law. He is also concerned that the court could uphold the provisions based on the fact that they exist in other states with different circumstances.
There is also apprehension on the part of progressives that the court could point to fraud prevention as a justification for the laws, even if voting rights experts say it is not a prevalent problem.
Progressives seized on comments made by Carvin at oral arguments suggesting that the laws were necessary for pure politics.