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Suffrage activists, on the defensive this year amid a wave of restrictive new electoral laws, grappled with new Supreme Court guidelines on Thursday signaling that the challenge of defying those laws in court is now going to be tougher.
The 6-to-3 ruling set up a series of “signposts” of potential violations under Section 2 of the Voting Rights Act and appears to limit one of the few avenues Democrats and activists currently have to file legal challenges against new measures in Republican controlled states are proposed and passed.
“This decision unduly limits our view of evidence in our Section 2 cases, and that will make it harder – not unwinnable – but harder,” said Allison Riggs, a senior attorney with the Southern Coalition for Social Justice, a nonprofit who is committed to protecting the rights of People of Color.
In addition to the Voting Rights Act, there are other legal ways to challenge restrictive electoral laws, including the first, 14th and 15th constitutional amendments. But the law was paramount in curbing laws that could disproportionately affect color communities, and the ruling could threaten some of the legal strategies that franchise groups and electoral lawyers have designed to challenge some of the new laws.
However, voting experts noted that Thursday’s court ruling did not override or significantly undermine Section 2 of the Voting Rights Act. “I think the test will stop a lot of discriminatory voting practices,” said Chad Dunn, co-founder of the Voting Rights Project at the University of California at Los Angeles and a longtime attorney specializing in voting rights. “And that part is good news.”
President Biden said he was “deeply disappointed” with the court’s decision and called on Congress to “restore the voting rights law to its intended strength.”
At least three major Section 2 claims are pending in the federal judicial system, according to an electoral disputes database maintained by Ohio State University. One of the cases is a lawsuit the Justice Department filed against Georgia last week, arguing that the state’s new collective electoral law, SB 202, is racially discriminatory in both intent and effects.
While the case was brought under Section 2, some election lawyers said it was unlikely to derail from Thursday’s court decision.
“There are two ways to prove a Section 2 case – you can show that there was deliberate discrimination, or you can show that the law in question had a discriminatory effect,” said Tom Perez, a former chairman of the Democratic National Committee and former head of the Justice Department’s civil rights division. “The court narrowed down the effectiveness test. The purpose claims remain unchanged, and the Georgia case is a purpose case. The recently filed Georgia cases contain allegations of willful discrimination and they include constitutional claims. “
Republicans said the court’s ruling would serve as a green light for GOP states’ lawmakers to pursue additional voting restrictions.
“Rhetorically, it will give them a shield to say, ‘What we are doing is perfectly legitimate, the Supreme Court lets us do it,'” said Benjamin L. Ginsberg, a veteran Republican election attorney. “What is important in this report is what the court considers with the usual voting burden. You need to be reasonably aware of where your polling station is. If a bunch of people can’t figure out where their constituency is, it doesn’t mean you have to lower common sense protection to help them. “
The conservative Heritage Foundation, which has worked with its political arm, Heritage Action, for years to make it harder to vote, said states should follow Arizona’s example in passing stricter electoral laws.
Garrett Bess, Vice President of Heritage Action, described the Supreme Court’s decision as “a tremendous gain for electoral integrity and voter confidence.” He added, “State officials across the country should take note of this and work to establish similar guidelines in their states.”
At least 22 new laws have been passed in 14 states since the November election, imposing new election restrictions, alarming Democrats and constituencies who say the measures threaten one of the pillars of democracy. So far, the Democrats have little choice but to pass new laws other than filing lawsuits and launching aggressive voter education campaigns in states like Georgia, Florida, and Iowa.
The two provisions of Arizona law that formed the core of the Supreme Court decision on Thursday were increasingly frequent voting restrictions that have surfaced in other states. A law banned third parties from assisting voters with postal ballot papers, a process Republicans derisively refer to as “voting” but which is designed to help elderly, sick, or otherwise disabled voters handle their ballot papers. The other law cancels all votes cast personally in the wrong district.
According to a database run by the Voting Rights Lab, a liberal-minded constituency, at least 22 states have enacted or introduced laws restricting voting. And one of the provisions of Georgian law would prohibit any voter from provisionally voting in the wrong district before 5 p.m.
Previous Supreme Court rulings on electoral laws have often been followed by a deluge of laws that have been worked out in light of the rulings. After the court upheld an Indiana voter identification bill in 2008, numerous other states, including North Carolina, Texas, and Pennsylvania, attempted to pass similar laws.
Jen Jordan, a Georgia state senator seeking the Democratic nomination for attorney general, said Thursday’s ruling would make it harder to raise legal challenges against the state’s new electoral law known as SB 202, as it would be necessary to prove that Georgia Republicans intended to make voting more difficult for people of color rather than the effect of the new law.
“It is very difficult to gather enough evidence or appropriate evidence to support real intent,” she said, “and that seems like the only way to do it now under the VRA.”
While some constituencies found it not to be a worst-case scenario, Democrats across the country were quick to scoff at the Supreme Court ruling, which collapsed along the court’s 6-3 ideological split, and vowed their efforts to pass a federal electoral law.
“Today’s Supreme Court ruling confirms what we already know: Voting rights are under attack in America and we must act now with the greatest urgency to end the era of voter suppression once and for all,” said Rep. Hakeem Jeffries. a New York Democrat and the chairman of the House Democratic Caucus.