After the decision in Brnovich v. Democratic National Committee, the Supreme Court weakened the Voting Rights Act. The impact will make it easier to restrict voting in the United States.
One-hundred fifty years after the ratification of the Fifteenth Amendment, which guarantees the right to vote regardless of race, color, or previous condition of servitude, many minorities, particularly African-Americans, continue to face discriminatory voting practices in the United States. In response to the amendment, Southern states enacted various measures to limit African Americans’ ability to vote: these included poll taxes, literacy taxes, and intimidation. At the1965 Selma to Montgomery march, Alabama State Troopers attacked hundreds of peaceful demonstrators with nightsticks, tear gas, and whips at the Edmund Pettus Bridge in Selma.
This violence caused national outrage and galvanized the nation to fight against racial injustice. Following the brutal incident, President Johnson signed the Voting Rights Act of 1965, which prohibited these aforementioned discriminatory voting practices, and increased federal oversight of elections. State legislatures continue to circumvent the Voting Rights Act to implement restrictions, such as eliminating no-excuse absentee, and removing voters from the registration rolls, on voting. The wide discrepancy of voting protections among the states led to two Supreme Court cases to rule on their validity.
Since the implementation of the Voting Rights Act, the Supreme Court has ruled on it several times. In 2010, the government of Shelby County, Alabama, sued the United States Attorney General, challenging the constitutionality of Section 4(b) and 5. Because of its history of discriminatory voting practices, Alabama needed federal approval to enact new election laws. Three years later, the Supreme Court ruled that Section 4b was unconstitutional because the social context that the Court ruled in 40 years earlier did not resemble the current landscape. In the majority opinion, Justice Roberts stated:
"Regardless of how one looks at the record, no one can fairly say that it shows anything approaching the pervasive, flagrant, widespread, and rampant discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the nation."
Furthermore, he indicated that it was up to Congress to remedy the issue of voting discrimination. Justice Ginsburg delivered the dissenting opinion saying:
"Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet."
The ruling by Roberts made the VRA inoperable. According to the Brennan Center’s 2018 State of Voting Report, states previously covering preclearance enacted a series of laws and other measures to restrict voting following the Shelby decision. After the Shelby decision, the Brennan Center found that rates of voter purging increased across the country, especially in states formerly under the preclearance clause. Georgia is the model of how states commit voter suppression. From 2012-2016, they purged over a million people from the voting rolls and decreased turnout by almost ten percent.
The rulings from these three Supreme Court Cases: Mobile v. Bolden (1980), Shelby County v Holder (2013), and Abbott v Perez (2018), have diminished the authority of the Voting Rights Act and have ultimately made it harder for minorities to vote. Section two is a beneficial and significant tool that courts use to protect the right to vote for minorities. It prohibits any law that results in the disproportionate burden of minority suffrage. It is essential in the fight against voter suppression.
On March 2, 2021, the Supreme Court heard the oral arguments of Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee in a consolidated case. The cases have two provisions: the first one disqualifies any ballot cast in the wrong precinct, and the second prohibits any person, such as a family member or caregiver, from turning in a ballot. Mark Brnovich, the Attorney General of Arizona, argued that these provisions are in place to prevent voter fraud. Meanwhile, Katie Hobbs, Arizona’s Secretary of State, argued that these policies were discriminatory based on their disproportionate impact on Black, Latino, and indigenous voters. In the oral arguments, Jessica Ring Amunson discussed how if these provisions prevent fraud, the state should point to evidence of a real danger of fraud. Though she maintained no evidence of ballot collection in Arizona, Justice Gorsuch contended: “does Arizona have to wait for fraud to occur in Arizona?”
The two questions that the justices must answer are:
Does Arizona’s out-of-precinct policy violate Section 2 of the Voting Rights Act?
Does Arizona’s ballot-collection law violate Section 2 of the Voting Rights Act or the Fifteenth Amendment?
For Native Americans, ballot harvesting is an essential aspect of voting. Many of them lack reliable transportation and live in geographically remote areas. They rely on their family or friends to drop off their ballot. There is no access to home mail services for the Navajo Nation. According to the Intertribal Council of Arizona, rural post offices are 20 miles away from the tribal communities, and during the election season, the November weather makes the roads impassable. Before Shelby County v. Holder (2013), Arizona was covered by Section 5 due to its long history of race-based voting discrimination. When preclearance was a threat, Arizona legislatures were unsuccessful in passing less restrictive voting laws. Structural inequities demonstrate the need to use ballot collection services because they do not have similar access to transportation, mail service, or childcare as white voters.
The argument of fraud is unsubstantiated and flat-out wrong. Out of the more than 1 billion ballots cast between 2000-2014, only 31 credible instances of impersonation fraud occurred. After a review of the 2016 election, there was no evidence of widespread voter fraud. With a majority conservative court, the decision on Brnovich v. Democratic National Committee, and Arizona Republican Party v. Democratic National Committee, may further restrict voters and destroy the remaining aspects of the VRA. On July 2nd, 2021, the Court ruled in a 6–3 decision for Brnovich that Arizona's policy on ballot harvesting and out of precinct did not violate section 2 of the Voting Rights Act, reversing the decision from the 9th circuit.
Banning the service impacts minorities at a disproportionate rate violating section 2 of the Voting Rights Act. It is a necessary tool for voting. During the oral argument, Michael Carvin responded to Justice Barrett's question: "it puts us at a competitive disadvantage relative to Democrats. Politics is a zero-sum game," showing that the policies were partisan and to diminish certain groups of people from voting. Based on the “results test,” the justices should have upheld the decision by the United States Court of Appeals for the Ninth Circuit that the Arizona policies violate Section 2 of the Voting Rights Act (VRA) and the Fifteenth Amendment. The justices focused on voter fraud instead of racial discrimination as more of a threat to our democracy.
Voting is an essential part of our democracy. Citizens should have the right to participate in the democratic process of electing politicians that best serve their values. We should make it easier for people to vote rather than restricting their ability to do so. Since the court did not protect the Voting Rights Act, Congress must do everything in its power to protect our fundamental right to vote. Senate Democrats need to take the political risk and abolish the filibuster to pass the For the People Act and the John R. Lewis Voting Rights Act. With Senate Republicans calling the legislation written in hell by the devil himself, it will be impossible to get to 60 votes to pass the bill. It may set a precedent, but the Democrats can utilize the parliamentarian to bypass the 60 votes and pass both bills with a simple majority.
Democrats have the majority in the Senate, the House, and the presidency. After the Supreme Court decision, they must take a similar approach as they did in 1982 with legislation to nullify the decision. Democrats have the power to make it easier to vote for all Americans. The Fifteenth Amendment grants the right to vote, and the Voting Rights Act needs to be strengthened to ensure it.