The Supreme Court will clearly not protect voting rights. But Congress can.

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The case concerns two provisions of Arizona election laws under section 2 of the Voting Rights Act. One said that a person voting in the wrong constituency would have their entire ballot rejected, even for races such as president or governor, where the enclosure would not be a factor. The other limited the circumstances under which postal ballots could be delivered in the name of a neighbor or unrelated friend.

Last year, the U.S. 9th Circuit Court of Appeals ruled that the two policies were discriminatory because of how they interact with the actual living conditions of minority voters in the state. For example, a brief filed by the Navajo Nation noted, “The Arizona ballot collection law criminalizes the ways in which the Navajo historically participated in advance voting by mail. Due to the remoteness of the Nation and the lack of means of transport, it is not uncommon for the Navajo to ask their neighbors or members of their clan to deliver their mail.

The Supreme Court, by a tie of 6 to 3 between the conservatives and the liberals of the court, quashed the lower court, ruling that the burden on voters of color was too “modest” to violate the law on voting rights in light of Arizona’s justifications for the laws.

But the damage caused by public opinion far exceeds Arizona voters. Departing from the previous one, which placed the “social and historical conditions” created by racial discrimination at the heart of its analysis of Section 2, the majority of the tribunal, in an opinion drafted by Judge Samuel A. Alito Jr., has chose to focus instead on a new set of ‘benchmarks’. Although the majority recognized that “differences in employment, wealth and education” may allow some electoral laws to have a disparate effect, they essentially raised their hands, as it may be “virtually impossible for one. State to design rules that do not have a disparate impact.

The court guidelines will make it much more difficult to challenge discriminatory laws. Since Congress last amended Section 2 in 1982, the majority indicated that the electoral practices of 1982 were a benchmark for “assessing whether the charges imposed by a [voting] rule are sufficient “to warrant a concern today under the VRA. Putting aside the fact that the Voting Rights Act in no way ratifies the electoral practices of 1982, consider the implications of this approach: Four decades ago, states did not use computers in the administration of elections. , and advance or postal voting was not as widespread. used. And across the country in recent cycles, voters of color have become a larger segment of the electorate.

The court did not deny that voters of color were disproportionately affected, but still missed Arizona’s current voting barriers as those barriers only affect a small number of voters. generally. The implication: Discrimination can persist, as long as there is only a small part of it.

And the court made it more difficult to challenge discriminatory barriers to certain voting methods if other methods are available by saying that courts should view these barriers in the context of “the entire state voting system.” . In other words, a barrier to voting, even a racially discriminatory one, might be acceptable if there is a plausible workaround. This means, for example, that state lawmakers seeking to eliminate early voting on Sundays, when black churches across the country have often held successful soul-searching election campaigns at the polls, might point to other avenues available. to vote as justification.

As it has done in the past, the majority have lip service to the reality of electoral discrimination, stating: “No one is suggesting that voting discrimination has been rooted out or that the threat has been eliminated. . But this has both limited the tools available to respond to this threat and created loopholes, making discrimination more likely to occur. As Justice Elena Kagan noted in her dissent: “What is tragic here is that the Court has (once again) rewritten – in order to weaken – a law that is a monument to the greatness of the world. America and protect against its lowest impulses. “

The timing couldn’t be worse. Republican state lawmakers across the country have pushed a series of increasingly aggressive new laws restricting access to the ballot box, many of which are said to affect voters of color.

The ruling also demonstrates the vacuity of assurances from Republicans in Congress that existing federal laws adequately protect Americans’ voting rights. Senatorial Minority Leader Mitch McConnell (R-Ky.) Publicly opposed a proposed bipartisan effort to fully reinstate the 1965 Voting Rights Act, saying it was “unnecessary”, because “it is against the law to discriminate in the vote on the basis of race already. Just last week, he and all of his fellow Republican senators used filibuster to block debate on the For the People Act, which would strengthen voting rights across the country.

Federal courts have for decades played a vital role in protecting the right to vote of all Americans. But instead of serving as a bulwark against politicians’ efforts to target underprivileged voters, the tribunal, chaired by Chief Justice John G. Roberts Jr., has steadily reduced voting rights in recent years.

In 2008, the Roberts court upheld the constitutionality of an Indiana voter identification law implemented on the basis of non-existent voter fraud. In the 2013 decision in Shelby County v. Holder, the court gutted the essential provision of the Voting Rights Act requiring jurisdictions with a history of discrimination to obtain a “preclearance” from the federal government for any changes to their voting policies to ensure that they do not. are not discriminatory.

Now discriminatory policies like Arizona’s are not only obstructed by preclearance, but they are also upheld by the same court that removed the preclearance requirement. (Indeed, the ban on the collection of ballot papers by third parties involved in Brnovich was withdrawn in 2011 during a preclearance review after the Arizona chief electoral officer admitted the provision was “targeted at voting practices in predominantly Hispanic areas.”) Shelby County, laws restricting access to the vote have proliferated across the country.

For decades, Section 2 has served to challenge laws and practices that have created racial disparities in access to the vote, taking into account all relevant circumstances. In Brnovich, the court has considerably blunted this tool. He did so amid a deluge of new state laws making voting more difficult and on the cusp of a new round of redistribution which – in part thanks to other recent Supreme Court rulings – will likely be rife with abuse.

Instead of waiting for a high court that has already shown reluctance to protect voters from discriminatory efforts, the legislature can step in. Given the lack of support from the GOP, this necessary strengthening of our election laws will likely require changing the Senate’s rules on obstruction. It won’t be easy, as Senate Republicans have already used filibuster to block debate on the For the People Act, and the John Lewis Voting Rights Advancement Act receives minimal bipartisan support. But Thursday’s decision raised the stakes: If Congress does not act, it will leave voters of color increasingly vulnerable to efforts to exclude them from our democracy.

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