On July 1, The U.S. Supreme Court upheld the constitutionality of two Arizona voter suppression laws in the Brnovich v. Democratic National Committee case. The ruling comes as the nation has witnessed the passage of more than 22 Republican-sponsored voter suppression laws in over a dozen states. According to the Brennan Center for Justice, there are another 61 similar bills still pending in 18 other states.
In a 6 to 3 decision along ideological lines, the majority conservative justices turned back a challenge to two Arizona laws that voting rights advocates assert disproportionately restricts the rights of voters in communities of color and among indigenous citizens. One of the laws prevents people from submitting a completed ballot from another voter — with certain exceptions — and the other stops voters from casting their ballot at a location other than their assigned polling place.
The 1965 Voting Rights Act was gutted in a previous 2013 Supreme Court ruling that invalidated Section 5, that mandated pre-clearance of new voting laws for certain jurisdictions with a history of imposing voter suppression laws. Many legal observers say this latest ruling eviscerates Section 2 of the Voting Rights Act. which prohibits voting practices that discriminate against minority voters. Between The Lines’ Scott Harris spoke with Marjorie Cohn, professor emerita at Thomas Jefferson School of Law, past president of the National Lawyers Guild and author. Here she examines the consequences of the Supreme Court’s recent ruling which further erodes the 1965 Voting Rights Act.
MARJORIE COHN: What happened is that the six right-wingers ruled over the dissent of the three liberals that two of the laws in Arizona, the out-of-precinct policy and the ballot harvesting provision did not violate Section 2 of the Voting Rights Act. Now Section 2 forbids any voting procedure that results in a denial or abridgment of the right of any citizen of the United States to vote on account of race. So, Samuel Alito wrote the majority opinion and, Elena Kagan wrote the dissent. And Alito, in the majority opinion, on behalf of he and the other five right-wingers on the court wrote that voting restriction should only be struck down if they impose substantial burdens on voters of color that prevents them from voting. And he said that where a state provides many ways to vote, any burden on voters who choose one of the available options, can’t be evaluated without also taking into account the other available means.
One of the most alarming things about this decision is that the majority said that the prevention of voter fraud is a legitimate state interest that can overcome proof of a burden on voters and uphold the voting restriction. Now voter fraud is a bogus mantra that the Republicans and Donald Trump parroted during the election. “Voter fraud. Voter fraud.” There is virtually no evidence of voter fraud.
And yet the Supreme Court said preventatively they can put in place these voting restrictions to prevent this bogus voter fraud. In the dissent, Elena Kagan lambasted the majority for writing its own set of rules and limiting Section 2 from multiple directions. She said that the majority established a list of mostly made up factors which were at odds with Section Two itself, and they all cut in one direction. And that is toward limiting liability for race-based voting inequities.
There are two laws pending in Congress and unfortunately because of the Senate being 50-50 and a couple of blue-dog Democrats who vote with the Republicans, they’re not likely to go very far at this point. But one of them is The For the People Act, which would enhance voting rights and the administration of elections, discusses money in politics, redistricting government transparency and ethics.
And then the other bill that’s pending is the John Lewis Voting Rights Advancement Act to protect voters in states with a pattern of discrimination, with a history of a pattern of discrimination. And to ensure that last-minute changes in voting procedures don’t endanger people’s right to vote and protect voters from changes likely to disenfranchise people of color and language minorities. There’s also the Judiciary Act of 2021, which is pending and that would increase the number of Supreme Court justices from 9 to 13. That could dilute the right-wing agenda of the current six right-wing members of the court. I don’t know that it’s going to go anywhere either.
Biden has set up a commission of law professors to study the Supreme Court, and they really are not talking too much about increasing the number of justices, although they are talking about term limits. But that would require a constitutional amendment, which is literally impossible. So this is really, really bad. Scott, it does not portend well for voting rights of people of color and minorities. It’s very, very distressing. And, you know, people were saying throughout the term, “Oh, you know, the courts are not being ideological, you know, there’s different combinations of justices and their politics.” But they really showed their true colors. In this case, it’s a real blow dealt to the rights of voters.
SCOTT HARRIS: In speaking about the future of the For the People Act and the John Lewis Voting Rights Advancement Act, there’s the obstacle of the filibuster in the Senate. Unless the Democrats rally to get rid of the filibuster, these two pieces of legislation may be dead. Do you believe the Democratic party is fully committed to passing this legislation? Or is there some ambivalence do you think, there?
MARJORIE COHN: No, I think that the Democrats would like to pass it, but I think they’ve kind of resigned themselves to, you know, the obstruction by Manchin to keep the filibuster. And as long as the filibuster is there, they’re really kind of paralyzed. So I think that, you know, they’re probably discouraged., I think thta you know, the progressives in the Democratic party are really pushing hard. The moderates are, you know, kind of throwing up their hands. I hope they don’t give up, but at this point, it’s not looking great.
For more information, visit Marjorie Cohn’s website at marjoriecohn.com.
