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Advocates decry Supreme Court's surprisingly sweeping voting rights decision

POLITICO logo POLITICO 7/1/2021 By Josh Gerstein and Zach Montellaro
a group of people in a room: The ruling will undercut efforts to challenge a slew of new laws Republican-led states have passed imposing new restrictions on the ballot, lawyers and civil rights activists said. © Mario Tama/Getty Images The ruling will undercut efforts to challenge a slew of new laws Republican-led states have passed imposing new restrictions on the ballot, lawyers and civil rights activists said.

The Supreme Court’s ruling in a Voting Rights Act case Thursday may appear modest in scope and subdued in rhetoric, but it will have a sweeping impact — undercutting efforts to challenge a slew of new laws Republican-led states have passed imposing new restrictions on the ballot, lawyers and civil rights activists said.

"It will have a devastating impact on our ability, and other civil rights groups' ability, to protect the rights of voters through the courts,” said NAACP President Derrick Johnson.

The 6-3 loss for voting rights advocates also resurfaced second-guessing of the Democratic National Committee’s decision to file the suit on which the justices ruled, targeting Arizona’s longstanding refusal to allow out-of-precinct voting and a 2016 law banning collection of mail-in ballots through a practice critics call “ballot harvesting.”

“Certainly in retrospect, one would say this case was not the best case to bring,” said David Cole, the national legal director of the ACLU, conceding that evidence of discrimination was “fairly weak” for the two practices challenged in Arizona.

“The fact that the court overturned the rulings, with respect to those two practices in Arizona, is not what's disturbing about the decision,” he continued. “What's most disturbing about the decision is how the majority has essentially rewritten Section 2, broadly, to make it more difficult in all future cases to challenge voter suppression methods.”

The majority opinion, written by Justice Samuel Alito, adopts five “guideposts” to assess voting rules, while explicitly declining to announce a test to govern future cases. That approach is arguably in tension with the series of withering opinions Alito has issued in other cases in recent months accusing his colleagues of failing to provide clarity for lower courts.

Just Monday, the George W. Bush appointee faulted his fellow justices for taking what he called an “easy out” in a case about a suspect who died in police custody after being held face down by officers for 15 minutes.

Alito’s five guideposts also resemble the kind of freewheeling, multi-factor tests he and other conservative justices are fond of mocking at oral arguments as judicially created constructs that have unpredictable results.

During oral arguments in the voting rights cases, Michael Carvin — a lawyer for the Arizona GOP — warned the court against adopting a vague, multi-part standard that would result in “an amorphous, manipulable situation where no one knows what the rules are going into the next election.”

Justice Elena Kagan picks up on this tension in her dissent, skewering Alito for an “unusual free-form exercise” resulting in a “non-test test.” But she concludes that the effort suffers from “delusions of modesty” and that, regardless of the labels, the court has effectively foreclosed the ability to challenge voting practices that result in racial inequality.

“The majority ... founds its decision on a list of mostly made-up factors, at odds with Section 2 itself,” she wrote, adding that the formulation “stacks the deck against minority citizens’ voting rights.”

One election law expert noted that Alito’s opinion lacks some of his usual swing-for-the-fences swagger.

“The mushiness is not typical of an Alito opinion,” said University of California-Irvine Professor Rick Hasen. “I think this was necessary to get the other justices on board — probably [Amy Coney] Barrett and [Brett] Kavanaugh —with a test that would be sufficiently mushy that it could be defended as potentially allowing some Section 2 cases to go forward.”

However, Hasen said he believes that in practice, nearly all such challenges to voting procedures will be doomed under the framework the court set out Thursday.


Video: US Supreme Court upholds restrictions in major voting rights case (ABC News)

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“It’s hard for me to see any Section 2 cases except the most egregious surviving” the new decision, the professor said. “It gives conservative judges something to hang onto as they reject them.”

While some civil rights groups portrayed the decision as disastrous or even fatal to disparate-impact challenges to voting rules, other election lawyers offered a relatively muted response, perhaps hoping that they can persuade judges to rule some changes unlawful under the terms of Thursday’s ruling.

“Progressives will need to fight harder with every tool available to protect voters from suppressive laws,” Marc Elias, an attorney who represented the DNC in the case, said in a statement.

Elias also stressed that there are other avenues to challenge voting restrictions, including arguments that they violate the Constitution. “It is important to remember that most voter suppression laws are challenged under First, 14th and 15th Amendments to the Constitution. Today's decision does not affect any constitutional claims,” he said.

The suit the Justice Department filed last week against Georgia over that state’s most recent election law changes seeks to dodge the legal standard in the Arizona-related cases by arguing that Georgia’s law was passed with the intent to discriminate against Black voters. That is typically more difficult to prove than showing that a practice has a disparate impact on minorities.

The Supreme Court’s latest ruling was praised by conservatives, including Arizona state Attorney General Mark Brnovich, whose name is on one of the cases and who argued it on behalf of his state in March. In a statement, Brnovich — who is running for Senate next year — hinted that the ruling could have ramifications that reverberate nationwide.

“Today is a win for election integrity safeguards in Arizona and across the country,” he said. “Fair elections are the cornerstone of our republic, and they start with rational laws that protect both the right to vote and the accuracy of the results.”

The high court’s move could also spur further action by Republican-led state legislatures, many of which have considered or passed legislation this year that tightens ballot access.

Heritage Action, the political arm of the influential conservative think tank which has driven some of the recent GOP legislation, celebrated the ruling as well. “State officials across the country should take note and work to enact similar policies in their states,” Garrett Bess, vice president of Heritage Action, said in a statement.

Some Democrats and civil rights groups hope to find a silver lining in Thursday's ruling: that it somehow breaks a Senate stalemate over voting rights measures.

“It is a further example that the Senate must act to protect the rights of voters,” Derrick Johnson of the NAACP said. “What vehicle they use to achieve that doesn't make a difference, as long as the key components of voter protections are in place.”

Democrats’ main federal legislation on elections — the sweeping For the People Act — has stalled in the Senate amid a Republican filibuster last week and disunity among the Democratic caucus for what should actually be included in the bill. Notably, Sen. Joe Manchin (D-W.Va.) has circulated proposals for what would be a slimmer package that focused on expanding in-person early voting, coupled with a nationwide voter-ID mandate, among other provisions.

(One of Manchin’s proposals would be to allow ballots to count regardless of what precinct they’re submitted in, which is a near-direct counter to the Arizona law upheld by the Supreme Court.)

Democrats are also pushing for a second piece of elections legislation, named for the late Rep. John Lewis (D-Ga.). This proposal would restore the requirement that certain jurisdictions get changes to election laws pre-approved by either the Department of Justice or a D.C.-based federal court before they go into effect. The preclearance requirement was neutered by a Supreme Court decision in 2013, Shelby County v. Holder, but that legislation has yet to be reintroduced this Congress.

In a statement shortly after the ruling, President Joe Biden urged Congress to forge ahead on both pieces of legislation.

“Today’s decision also makes it all the more imperative to continue the fight for the For the People Act and the John Lewis Voting Rights Advancement Act to restore and expand voting protections,” he said. “The Court’s decision, harmful as it is, does not limit Congress’ ability to repair the damage done today: it puts the burden back on Congress to restore the Voting Rights Act to its intended strength.”

Yet both face extremely tough paths through the Senate and to Biden’s desk. Manchin and Sen. Kyrsten Sinema (D-Ariz.) have both loudly said they have no interest in changing the filibuster rules, even for election legislation, and other Democrats quietly do not support overhauling the 60-vote threshold, either.

Conservatives are already whipping against the bill named after the late civil rights icon. Sen. Lisa Murkowski (R-Alaska) has been working with Manchin to try to build support for it, but Senate Minority Leader Mitch McConnell has already come out against it.

“The issue is going to continue to be a live one,” said Jason Snead, the executive director of the conservative Honest Elections Project, which opposes both pieces of federal legislation and has backed many of the new state laws from Republicans. “And there’s going to be more fireworks ahead.”

CORRECTION: A previous version of this report misspelled Sen. Kyrsten Sinema's first name.
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