On March 2nd, the Supreme Court will hear Oral Arguments in a Challenge to a Pair of Arizona Voting Policies that make it Harder for People to Vote, especially in Communities of Color and Native American Communities.
The Case, Brnovich v. Democratic National Committee (DNC), is Significant because it likely won’t just Affect Voters in Arizona. It could have Broad Implications for the Fairness of our Democracy across the Country because of the Supreme Court Decision that put on Hold, The Voting Rights Act of 1965 (VRA), Section 5 Preclearance Requirement, until Congress Redefines the Coverage Formula prescribed in Section 4(b).
The John Lewis Voting Rights Advancement Act (H.R.4) Formula Change.
The Brennan Center and other Groups are urging the Court to Enforce and Preserve the VRA’s Protections in the midst of an Expanded, Nationwide Voter Suppression push fueled by Lies about Nonexistent Fraud in the 2020 Election, those Safeguards have taken on even Greater Importance and so has this Lawsuit.
In 2016, the Democratic Party and a Group of Individual Voters filed Suit in Federal Court to Challenge Two Arizona Policies as Racially Discriminatory:
- The First is an “Out-of-Precinct” Rule that any Vote Cast in the Wrong Polling Place must be Tossed-Out, even if it is for President, Governor, or some other Race in which the Voter could have Cast a Ballot Anywhere in the State.
- The Second is a Ban on Collecting and Turnin-In Mail Ballots by Anyone other than a Voter’s Immediate Family Members or Caregivers.
The Plaintiffs Challenged these Policies under Section 2 of the VRA and the 15th Amendment, both of which bar Voting Policies and Practices that Discriminate based on Race. They Lost in the Trial Court but Won on Appeal. The Ninth Circuit Court of Appeals found that Both Policies resulted in Discrimination and that the Ballot Collection Prohibition was Passed for a Racially Discriminatory purpose. Arizona Attorney General, Mark Brnovich, and the Arizona Republican Party, asked the Supreme Court to take up the Case.
The Ninth Circuit found that Both of Arizona’s Policies amounted to Illegal Discrimination because of how they made it Harder for People of Color to Vote given the Specific Circumstances in the State. The Court did Not Rule that a Policy of Disregarding Out-of-Precinct Ballots or Limiting Ballot Collection is always Discriminatory, just that these Specific Policies were Discriminatory in Arizona.
Voters can Sue under Section 2 of the VRA whenever Minority Voters “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” They do Not have to Prove that a Policy was Passed for a Discriminatory Purpose, only that it Led to these Discriminatory Results.
In this Case, the Court noted that Latino, Native American, and Black Voters, in Arizona, have their Ballots Rejected for being Out-of-Precinct Reason far more often than their White Counterparts. The Court found that this was because Poll Locations were Moved around very Frequently in Arizona’s Communities of Color and were often Located in Counterintuitive Places near the Edges of Precincts. Adding to the Burden was the fact that Voters of Color move more Often.
The Court also Noted that Voters of Color and Native American Voters were more likely to rely on Ballot Collection than White Voters for Reasons that are especially present in Arizona. For example, the Significant Population of Native American Voters living on Reservations often Reside far from Polling Places and have Nontraditional Addresses and limited Mail Access. Further, the Court found that the Ballot Collection Policy was Enacted in order to take Advantage of these Disparities and Target Voters of Color.
Among other things, the Court noted that the Policy had been Passed based on False Rhetoric about Rampant Voter Fraud. The so-called “Evidence” of Voter Fraud that motivated the Legislature was a Video showing Surveillance Footage of a Latino Man dropping off Ballots with a Voiceover describing him as a “Thug” and suggesting he might be an Undocumented Immigrant.
It’s certainly important for Stopping Voter Suppression in Arizona. But its Significance reaches far beyond Arizona’s Borders because the Case concerns the VRA, one of the most Successful Civil Rights Laws in our Nation’s History. Brnovich, the Republican Party, and a Number of Others that filed Friend-of-the-Court Briefs have used the Case to ask the Supreme Court to Seriously Limit on VRA Section 2, which allows Voters and Advocates to Challenge Racially Discriminatory Policies and Practices. Any Decision Weakening Section 2 would make it much Harder to Stop Voting Discrimination in the Future.
Section 2 Prohibits States and Localities from Imposing any “qualification or prerequisite to voting or standard, practice, or procedure . . . in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” It also allows Voters to file Suit to Challenge Discriminatory Policies.
The justices are considering whether to leave Arizona’s Voting Restrictions in place. They do Not have to reach beyond the Facts of this Case and Depart from Prior Precedent about how Section 2 works to do so. However, many of the Briefs filed in the Case are asking the Supreme Court to make such a Departure.
Even though Section 2 was Designed to Protect against Policies that Result in Discrimination, some have asked the Justices to Limit it to Policies that Plaintiffs can Prove were Intended to Discriminate. Some have asked the Court to Limit the Law only to Challenges against Policies that Dilute Votes. Some have even taken the Radical Position that Section 2 is Unconstitutional in some way.
These Attacks come as we are witnessing a New and Unprecedented wave of Restrictive voting Legislation under consideration across the Country. Already this year, over 253 Restrictive Bills are under Consideration by Legislatures in 43 States, compared to 35 such Bills in 15 States in 2020. We are also heading into a New Redistricting Cycle, and without Section 5 Preclearance in effect, the Threat of Discriminatory Maps is real.
Unless Congress passes The John Lewis Voting Rights Advancement Act (H.R.4) and Restores Section 5 of the VRA, Section 2 will remain the Primary Tool available to Combat any Racially Discriminatory, combat any racially discriminatory policies.P
The Court should reaffirm the role that the VRA plays in protecting voters of color, Native American voters, and our democracy, making clear that Section 2 will continue to operate as a Check on Racially Discriminatory Policies.
A Group of 70 State and Local Election Officials from 38 States and the District of Columbia responded to Claims that a Robust Section 2 hinders Legitimate election Administration through the Threat of Litigation, showing how Section 2 actually Supports their Work. More than 250 Major Corporations, Individual CEOs, Board Directors, and Business Academics joined a Brief arguing that the Voting Rights Act is Fundamental to the Health of America’s Economy and Markets.
The Supreme Court should Uphold the Bedrock Principles of Fairness and Equality that Undergird our Democracy and Strike down Arizona’s Racist Voting Restrictions.
NYC Wins When Everyone Can Vote! Michael H. Drucker
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