The Supreme Court Could Demolish Another Pillar of the Voting Rights Act
Largely siding with the DNC is Arizona Secretary of State Katie Hobbs, a Democrat who oversees the state’s election system. She told the Supreme Court that the other side’s reading of Section 2 would immunize a broad swath of state election laws from review under the VRA’s remaining provisions. “In a radical departure from the status quo, [Brnovich and the RNC] argue that Section 2’s results test should not even apply to supposedly facially race-neutral policies or practices like those at issue here, regardless of their actual impact on minority voters,” she told the court. “That position finds no support in the text, structure, or purpose of the statute.” Hobbs also argued that her office, and not Brnovich, had legal standing to defend the out-of-precinct policy.
It’s hard to be optimistic that the Supreme Court will deliver a substantive ruling in favor of voting rights and the VRA. Until 2013, Section 5 of the VRA required Arizona and other states with long histories of racial discrimination to submit changes to their election laws to the federal government for review to ensure they wouldn’t have a racially disproportionate effect. That process, a core voter protection known as “preclearance,” came to an end after the Supreme Court’s conservative majority struck down the formula that had been used to determine which states were subject to this additional scrutiny in their Shelby County decision. While the court’s majority concluded that the country had “changed” since the civil-rights era, Ginsburg famously compared the majority’s ruling to “throwing away your umbrella in a rainstorm because you are not getting wet.”
Ginsburg’s understanding of American society turned out to be more accurate. The 2013 ruling led to a sharp uptick in laws and policies that would make it harder for voters to cast a ballot, especially if they came from minority communities. In states formerly covered by preclearance, state and local officials closed more than 1,200 polling places in the first six years after the ruling. And while preclearance did not cover every Republican-led state that raised new barriers to voter access over the past decade, the Roberts Court’s relaxed approach to voting-rights enforcement in general emboldened state lawmakers to pursue more aggressive measures.
Indeed, the reason Section 2 of the Voting Rights Act has suddenly become so consequential is, in part, related to the Supreme Court’s gutting of Section 5 back in 2013. “Since this Court struck down the preclearance formula in Shelby County, Section 2 has become the principal bulwark against policies and practices that disenfranchise minority voters,” Hobbs told the court. “But Section 2 claims are expensive to litigate, place the burden of proof on plaintiffs, and generally cannot stop laws prior to implementation. So it is unsurprising that pre-Shelby County, Section 5 was plaintiffs’ primary tool for combating vote denial.” Section 2 is nowhere near as strong as Section 5 once was, of course, but it’s certainly better than nothing.