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Thursday’s 6-to-3 Supreme Court ruling confirming voting restrictions in Arizona effectively raised the bar for voting attorneys to submit federal cases under the Voting Rights Act: demonstrating discriminatory intent.
This burden is causing civil rights and electoral groups to refocus their approach in court to challenging the series of new restrictions imposed by Republican-controlled lawmakers this year following Donald J. Trump’s electoral defeat in November. You can no longer rely on the federal courts, including the Supreme Court, to act as a backbone to prevent racially discriminatory electoral restrictions.
“We have to remember that the Supreme Court doesn’t save us – it will not protect our democracy in those moments when it is most needed, ”said Sam Spital, head of litigation at the NAACP Legal Defense Fund, on Friday.
The Supreme Court in a 2013 ruling gutted the core protections of the Voting Rights Act, and on Thursday the court further narrowed the law’s scope in combating discriminatory laws by establishing tough new guidelines for demonstrating the effects of the law on colored voters thus litigation parties to overcome the much higher bar for the evidence of a specific intention to discriminate.
Mr Spital said his group must carefully weigh and “consider very carefully” their next steps before bringing up new cases that, if defeated, could set harmful new precedents. The Arizona case, filed by the Democratic National Committee in 2016, was seen as a weak tool to challenge new electoral laws; even the Biden administration acknowledged that Arizona law was non-discriminatory under the Voting Rights Act. Choosing the wrong cases in the wrong jurisdictions could lead to further setbacks, said Mr. Spital and other proxies.
At the same time, according to Mr. Spital, it is imperative that the election restrictions imposed by the Republicans do not remain unchallenged.
“It will force us to work even harder in the cases we bring,” he said. “Once the rules of the game are in place, even if they’re against us, we have the resources – we have exceptional lawyers, exceptional clients, and we have the facts on our side.”
Thursday’s ruling also revealed an uncomfortable new reality for Democrats and electoral activists: Under current law, they can expect little help from the federal courts with electoral laws passed by the party that controls a state government. Republican lawmakers in Georgia, Florida, and Iowa have been aggressive to enforce electoral laws, brushing aside protests from Democrats, constituencies, and even big corporations.
The Arizona Republicans were open about the partisan nature of their efforts when the Supreme Court heard the case in March. An Arizona Republican Party attorney told judges that the restrictions were necessary because, without them, Republicans in the state would have “a competitive disadvantage compared to the Democrats.”
“It’s a lot harder to prove these things – it takes a lot more evidence,” said Travis Crum, a law professor at Washington University in St. Louis who specializes in voting rights and reassignment cases. “Courts are often reluctant to label lawmakers as racist. That is why the effect standard was added in 1982. “
The High Court’s decision also increases stakes for the 2022 gubernatorial competitions in major swing states of Michigan, Pennsylvania, and Wisconsin, where Democratic governors stand ready to block measures proposed by Republican-controlled lawmakers. If a Republican won the governor’s seat in any of these states, lawmakers would have a clear way of getting new electoral laws through.
Republicans on Friday praised the Supreme Court ruling, calling it an affirmation of the need to tackle electoral fraud – although no evidence of widespread fraud emerged in President Biden’s victory.
Justin Riemer, chief counsel for the Republican National Committee, argued that the new majority opinion Judge Samuel Alito “guides” would be welcome and would force recognition of the wider choice in a state.
“It affirmed, for example, that states have an incredibly important interest in protecting themselves from electoral fraud and in strengthening voter confidence,” said Riemer. “When the court looked at Arizona law, it found how generous the voting rules were.”
Riemer noted that Democrats would also find it harder to meet new standards to show that laws place undue burdens on voters.
“I don’t want to say that it completely excludes them from Section 2, but it will make it very difficult for them to remove laws that are really minimal, if any, onerous,” said Riemer, referring to the sections of the Voting Rights Act dealing with racially discriminatory practices.
Major rulings by the Supreme Court confirming a new restriction on the right to vote have been followed in the past by waves of new state law. In 2011, 34 states introduced some form of new voter identification laws after the court upheld the Indiana Voter Identification Act in 2008.
The first immediate test of a newly encouraged legislature will take place next week in Texas, where the legislature is due to hold a special session in a second attempt by Republicans to pass an election revision bill. The first attempt failed after the Democrats staged a controversial night strike in the state legislature and temporarily halted proposals that were among the most restrictive in the country.
These proposals included bans on new voting methods, shortening Sunday voting times, and provisions that would facilitate the cancellation of elections and greatly empower partisan election observers.
The controversial litigation will be played out in a federal justice system re-designed during Mr. Trump’s tenure, and Democrats in Congress have failed to enact federal voter protection.
The Legal Defense Fund, which Mr. Spital represents, sued Georgia in May over its new voting laws, arguing that the laws had a discriminatory effect. Other lawsuits, including one filed by the Justice Department last week, argue that Georgia acted with intent to discriminate against voters of color.
However, some Democrats complained about the Supreme Court’s decision, but noted that they still have many constitutional tools to challenge repressive electoral laws.
“Obviously, litigation is getting harder now,” said Aneesa McMillan, deputy executive director of Super PAC Priorities USA, which oversees the organization’s voting efforts. “But most of the cases we contest we dispute on the basis of the First, 14th, and 15th Amendments to the Constitution.”
Among the guidelines that Judge Alito formulated was an assessment of the “standard practice” of voting in 1982 when Section 2 of the Voting Rights Act was amended.
“It is relevant that in 1982 the states generally required almost all voters to cast their votes in person on election day, and only allowed narrow and well-defined categories of voters to cast postal ballots,” wrote Judge Alito.
The court did not address the purpose clause in Section 2. However, these cases are often based on racist statements by lawmakers or irregularities in the legislative process – elements of a legal dispute that are more difficult to prove than the effects.
“You won’t get that kind of evidence,” said Sophia Lakin, the ACLU’s deputy director of the Voting Rights Project. “Much evidence is being brought together to show that the purpose is to take away the rights of colored voters.”
In Texas, some Democrats in the Legislature had hoped they could work towards a more moderate version of the bill in the special session beginning next week; It remains to be seen whether the Supreme Court ruling will induce Republicans to endorse an even more restrictive bill.
Lt. Gov. Dan Patrick and State Representative Briscoe Cain, both Republicans, did not respond to requests for comment. Speaker Dan Phelan and State Senator Bryan Hughes, both Republicans, declined to comment.
However, whether the Supreme Court decision will open the floodgates for more restrictive electoral laws in other states remains an open question; more than 30 state legislatures adjourned for the year, and others have already passed their voting laws.
“It is hard to imagine what an increase in election restrictions would look like now because we are already seeing such a dramatic increase, more than ever since the reconstruction,” said Wendy Weiser, director of the democracy program at the Brennan Center for Justice, a research institute. “But the passing of new waves of laws has certainly been the answer in recent years.”
Wisconsin Governor Tony Evers is one of the Democratic governors withholding voting actions passed by Republican-led lawmakers. On Wednesday, he vetoed the first of several Republican electoral process laws.
In an interview, he said that the Republicans’ months of efforts to revive the 2020 elections have made voting at the health and education level a top priority for voters in Wisconsin.
“People are realizing more and more that this is an important issue,” said Evers. “You got it yourself, frankly, the Republicans. I don’t think the Wisconsin people thought the election was stolen. You understand it was a fair choice. And Republicans’ inability to accept the loss of Donald Trump makes it more of a bread-and-butter problem here. “