Shelby’s first county, now Brnovich: what’s left of the voting rights law?


The 1965 Voting Rights Act is arguably the most important and impactful federal civil rights legislation ever enacted. It was won on the backs and with the blood of civil rights leaders and allies determined to gain unhindered access to the ballot box for black Americans – a right that was violently denied to blacks for nearly a century after the ratification of the 14th and 15th Amendments.

The two most important provisions of the law: section 5, which requires states with a history of discrimination in voting to obtain approval from the federal government before passing new electoral laws, and section 2, which prohibits states from adopting voting laws, policies and procedures that result in the denial or reduction of the right to vote – have been crucial in avoiding substantial burdens and obstacles to the right to vote.

But over the past decade, the voting rights law has come under attack, and those same provisions have faced substantial restrictions by the United States Supreme Court.

Shelby Decision

In 2013, the Supreme Court effectively quashed Article 5 with its ruling in Shelby County v. Holder, giving states with known histories of electoral discrimination the green light to pass new discriminatory election laws without federal oversight or approval.

the Shelby County the decision left Article 2 as the main provision to challenge discriminatory election laws. But two weeks ago that provision, which has historically been a bulwark against election laws that disproportionately weigh on black voters and other voters of color, was reduced.

Brnovich Decision

In Brnovich v. Democratic National Committee, the Supreme Court considered whether two provisions of Arizona’s election laws were permitted under section 2.

The first was a provision that completely rejected all in-person ballots cast in the wrong riding on election day, including in federal elections. The second was a law that prevented third parties from returning mail ballots for non-family members and people not in their direct care and imposed a criminal penalty.

The U.S. Court of Appeals for the Ninth Circuit previously ruled that the two policies violated Article 2 because evidence showed they disproportionately denied or restricted the right to vote of voters of color.

The Supreme Court disagreed. In a 6-3 decision, the court ruled that the challenged laws imposed only “modest” burdens on voters of color in an electoral system which the court said was otherwise “equally open” to all voters and therefore did not violate voting rights. Act. In rendering its decision, the court purported to limit its decision to the voting policies at issue in the case. But he also announced a new set of “benchmarks” to govern the future challenges of voting laws that deny or restrict the right to vote.

These new guidelines no longer focus the court’s investigation on how the “social and historical conditions” created by racial discrimination interact with election laws to prevent black voters from accessing the ballot box. The court’s overriding focus is now on whether a single vote law or policy impedes the right to vote for a quite wide contingent of minority voters.

A precarious moment for voting rights

The court ruling could not have come at a more precarious time for voting rights, as state legislatures across the country introduce, push and pass increasingly aggressive election laws that restrict access to voting rights. ballot boxes.

So far this year, at least 19 states have enacted 29 new laws that restrict access to voting; many of these new laws will weigh disproportionately on black voters and other people of color.

This trend promises to continue as more states consider changing electoral laws and policies that will suppress votes, often under the guise of “electoral integrity.” While civil rights organizations like the NAACP Legal Defense Fund (LDF) continue to challenge many of these laws, litigation and advocacy are slow processes. Until then, millions of voters will be denied the right to vote in crucial elections. It’s by design.

Congress must act

Defenders of voting rights still digest Brnovich decision and assess its implications for ongoing and future voting rights litigation. But one thing is clear: voting rights remain under attack and the Supreme Court is not ready to intervene in any meaningful way.

Thus, the focus is now on Congress. Without federal voting rights legislation, the Brnovich decision will shape the next decade or more of efforts to protect the franchise. This is why it is essential that Congress act and pass strong and comprehensive federal voting rights legislation, such as the For the People Act and the John Lewis Voting Rights Advancement Act.

These bills offer sweeping protections against the very laws that states like Georgia and Florida recently enacted and will make our electoral system more accessible to all.

Without action by Congress, it will be increasingly difficult to defend voting rights and, therefore, our democracy.

This column does not necessarily reflect the opinion of the Bureau of National Affairs, Inc. or its owners.

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Author Info

Mahogany reed is John Payton Appellate and Supreme Court Advocacy Fellow for the NAACP Legal Defense and Educational Fund. As such, she contributed to the LDF project brief friend deposited in Brnovich. Prior to LDF, she practiced complex commercial litigation in a specialized law firm in Houston. Previously, she served as a clerk in the United States Court of Appeals for the Fifth Circuit and in the United States District Court for the Central District of Louisiana.


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