The following is adapted from oral testimony given on Friday before the subcommittee of the House Judiciary Committee on the Constitution, Civil Rights and Civil Liberties on how to remedy the effects of the Supreme Court’s ruling in Brnovich vs. Democratic National Committee.
We are witnessing a wave of more restrictive electoral laws than we have seen since the enactment of the Voting Rights Law. And while the Supreme Court of 2013 Shelby County v. Holder decision helped open the floodgates to efforts to reduce voting rights, Brnovich decision weakened one of the tools we might otherwise use to stem the tide.
So Congress must meet again at this time, as it has done in the past – in 1965 and 1982 – to protect voters from discrimination. To provide truly comprehensive protection, Congress must restore the voting rights law to its former glory and pass the Law for the People to set a new standard for open elections, without discrimination.
I will start with a brief explanation of the harm that Brnovich decision, then turn to potential remedies.
The first mistake of Brnovich The majority is that it departs from decades of precedent and shifts the focus of its analysis away from what Congress wanted, which was an assessment of how voting rules interact with the effects of racial discrimination. This is the purpose of the “all the circumstances” test in section 2. But the Court focuses on a set of five so-called “benchmarks” that courts must consider moving forward. .
In my written testimony, I explain in detail how each of these benchmarks will distract the courts from the cause of identifying and eradicating discrimination in voting. The short version is that they are asking the courts to examine with skepticism the characteristics which are in reality the characteristics of today’s vote suppression.
The reality is that state legislatures are not hacking, but cutting voting rights from every angle. They cut off access to postal voting; they reduced in-person voting; they cut voters off the lists with flawed purges. While one slice may seem minor, the end result is death by a thousand cuts. This is how states, in the words of the Fourth Circuit Court of Appeals, target voters of color “with almost surgical precision.”
But the majority in Brnovich seems willing to accept discriminatory charges as long as they do not deny the right to vote to too much many. The majority doubt that a restriction on one voting method discriminates whether there are other methods available. If a state’s election laws are better than the status quo of 1982, when key changes were made to the voting rights law, the majority suggest it will be difficult to find them discriminatory.
Worse yet, the majority far too quickly accepts the excuse that states give for these discriminatory laws in each case: fighting fraud. The Court accepts at face value the lie that currently threatens to undermine our democracy.
My colleagues and I are responsible for defending the right to vote. This decision, following Shelby County and others, leaves us facing unprecedented attacks with a blunt tool to retaliate. So what is the solution ?
To right the wrong caused by Shelby County, Congress should restore preclearance by passing the John Lewis Voting Rights Advancement Act.
But now, to truly restore our power to push back against discriminatory laws, Congress must strengthen Section 2.
First, Congress must ensure that the erroneous guidelines of the Supreme Court will not prevent the identification of genuinely discriminatory practices. Congress could set out the relevant considerations in determining whether a rule produces discriminatory results, making explicit the central role that historical and current discrimination must play in the courts’ analysis of Article 2 claims. Senate, which were created in 1982, have guided the courts for decades. But Congress could also develop them.
Second, Congress must make it clear that the real threat to our democracy is racial discrimination, not widespread electoral fraud. In order to normalize deference to states, Congress could require courts to take into account the fragility of the relationship between the policy at issue and the stated purpose. Or it could require states to prove that the rule in question actually serves the purpose.
Finally, it is essential that Congress make it clear that there are no tolerable level of racial discrimination.
With these goals in mind, Congress can remedy the damage done to the Voting Rights Act.
But restoring the Voting Rights Act is not enough. Congress must also pass the For the People Act and create a new national voting standard. This will require common tactics to restrict voting away from the table. We commend the House for already doing its part on this file.