McConnell asks the Supreme Court to obliterate the Voting Rights Act

There is an avalanche of new voting restrictions being imposed by Republican legislators across the country. When Popular Information covered this issue in February, the Brennan Center had identified 165 bills to restrict voting rights across 33 states. Less than a month later, the group has identified 253 bills to restrict voting rights in 43 states. These bills would impose a variety of measures to make voting harder, including reducing opportunities for early voting, limiting the use of mail-in ballots, eliminating drop boxes, and imposing new voter ID requirements. 

What explains this phenomenon?

First, Republicans view introducing legislation to restrict voting as a way to demonstrate their support for Trump. It legitimizes the fake problem of widespread voter fraud, pushed relentlessly by Trump, by proposing a solution. Many of the elected officials sponsoring the legislation also supported Trump's efforts to overturn the election results. 

In his speech to CPAC on Sunday, Trump falsely claimed that he lost because Democrats "cheated" and demanded Republicans pass new restrictions on voting:

There should be a legitimate reason for someone to vote absentee, has to have a reason. We should eliminate the insanity of the mass and very corrupt mail-in voting. We must have voter ID... [T]hey used COVID as a way of cheating. That’s what happened. And everybody knows it. Hundreds of thousands and millions of ballots. They used it as a way of getting what they’ve wanted for many years. And the Republicans have to do something about it. They better do something about it. 

But while Trump is creating the political imperative to pass this legislation, much of it would be impossible without the recent actions of the Supreme Court. In 2013, in Shelby County v. Holder, the Supreme Court "struck down the heart of the Voting Rights Act of 1965 by a 5-to-4 vote, freeing nine states, mostly in the South, to change their election laws without advance federal approval."

Prior to that case, states with a history of discrimination — including Georgia, Arizona, and Texas — had to get pre-approval from the Justice Department before enacting changes to voting procedures. These states had to prove that the proposed change would not have a discriminatory effect. 

The procedure, detailed under Section 5 of the Voting Rights Act, was astonishingly successful. When it was enacted "black voter registration stood at 6.4 percent in Mississippi." Black voter registration in Mississippi is now 76%. But since 2013, Section 5 of the Voting Rights Act has been mothballed. Section 5 would have likely blocked current efforts in Georgia and elsewhere to change voting procedures in ways that disadvantage Black voters

On Tuesday, the Supreme Court will hear a new case that could dismantle what's left of the law. The case, Brnovich v. Democratic National Committee, concerns an Arizona law passed in 2016. The law required that ballots cast in the wrong precinct be thrown out entirely — even if the votes for statewide candidates were perfectly valid. It also prohibited anyone other than an immediate family member or caretaker from helping someone return an absentee ballot. 

The Democratic Party sued, arguing that the policies resulted in discrimination. Specifically, "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 party argued this was  "because poll locations were moved around very frequently in Arizona’s communities of color." The Democratic Party noted also noted that Native Americans residing on reservations needed more assistance returning their ballots because they "often reside far from polling places and have nontraditional addresses and limited mail access." 

Ultimately, the Democratic Party won on appeal under Section 2 of the Voting Rights Act. Section 2 prohibits changes to voting procedures that result in minority voters having "less opportunity than other members of the electorate to participate in the political process." Plaintiffs suing under Section 2, which can only happen after a law goes into effect, do not have to prove that the change in voting procedures had a discriminatory purpose. 

(As an aside, there is evidence that the Arizona law was motivated by prejudice. For example, to justify the restriction on assistance returning an absentee ballot, the law's proponents relied on "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.")

The Supreme Court decided to take up the case. And Republicans, including Minority Leader Mitch McConnell (R-KY) and Senator Ted Cruz (R-TX), are urging the court to use Brnovich v. Democratic National Committee to strike down Section 2 of the Voting Rights Act. It would be a devastating blow to voting rights in the United States. But with conservatives now holding a 6-3 majority on the Supreme Court, it's a distinct possibility. 

How McConnell and Cruz want to eviscerate voting rights

In an amicus brief submitted to the court, McConnell, Cruz, and eight other Republican Senators lay out a vision where states can restrict the time, place, and manner of voting in whatever way they want — regardless of the impact it has on minority communities. 

Yet Respondents urge, and the Ninth Circuit below adopted, an interpretation of VRA §2 that jeopardizes legitimate voting laws across the country. The Ninth Circuit held that any neutral voting law “results” in an unequal “opportunity” to vote “on account of race or color” whenever a plaintiff identifies some minimal statistical racial disparity related to the law—and then points to completely separate, long past, invidious voting discrimination… Nevertheless, the Ninth Circuit’s VRA §2 interpretation would eviscerate scores of legitimate time, place, and manner voting laws that prevent and deter fraud.

In other words, McConnell and Cruz want to allow states to have free reign to change the "time, place, and manner" of voting, even if those changes have a disparate impact on minority voters. They claim that such changes "prevent and deter fraud" but, like Trump, present no evidence to justify that claim.

That means, under McConnell and Cruz's interpretation, a bill in Georgia to limit early voting on weekends, a time when many of the state's Black voters choose to vote, would be outside the reach of Section 2 of the Voting Rights Act. Since it only changes the time of voting, they argue, it can't be discriminatory. 

A coalition of civil rights groups, in their own amicus brief, note that "Petitioners and their amici ask this Court to adopt an interpretation of Section 2 of the Voting Rights Act that would render that provision hopelessly ineffective in combating the new species of vote-denial laws, i.e., laws that make it disproportionately more difficult for minority voters to participate in the political process." 

The argument is related to whether or not you believe that racism is still a significant problem. Chief Justice John Roberts, who authored the 2013 decision to strike down Section 5, wrote, "Our country has changed. While any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.” 

In their brief for Tuesday's case, the coalition of civil rights groups quotes a Supreme Court case from 2009, Bartlett v. Strickland, that involved Section 2. "[R]acial discrimination and racially polarized voting are not ancient history… Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions," the Court wrote in its decision. 

Alternatively, the Supreme Court could take a middle path. It could uphold the Arizona restrictions but not announce any systemic changes to how it interprets Section 2. That would be a step backward for Arizona, but not preclude future challenges to most state voting restrictions. With the current composition of the Court, that's probably the best outcome for voting rights advocates.