On Tuesday, the Supreme Court will hold a hearing in one of the most significant cases in years on the meaning of a key part of the federal Voting Rights Act.  As before, the audio portion (not the video) of the one-hour hearing in two combined cases will be broadcast on c-span.org/supreme court

Hearing starts at 10 a.m.:

Brnovich v. Democratic National Committee, and

Arizona Republican Party v. Democratic National Committee

Background:  These cases, involving two Arizona laws that restrict voting techniques helpful to minority voters, reach the Supreme Court at a highly significant turning point in American election history.  Consider these developments, occurring simultaneously:

• Republican-controlled state legislatures across the nation, inspired by President Trump’s loud but unsupported claims that the 2020 election was stolen from him by fraud, are right now considering more than 250 bills to newly restrict voting rights, especially those techniques favored by or benefitting minorities.
• The new “Black Lives Matter” campaign to deal with America’s continuing racial inequality in voting as in other areas of society has been met with counter efforts by conservative groups to use the courts – and especially the Supreme Court with its new six-Justice conservative majority – to narrow the reach of existing vote-protection laws.
• The most important remaining provision of the 1965 federal Voting Rights Act – its Section 2 – is under heavy challenge at a time when it was serving as the alternative legal tool following the devastating loss eight years ago in the Supreme Court of the same Act’s strongest protection of minority voters’ rights.
• The Trump Administration filed a brief in these Arizona cases suggesting a new limitation on Section 2, but the Biden Administration has added confusion by telling the Court it no longer supports that brief but did not spell out its own view of Section 2’s breadth. No Biden lawyer will take part in the hearing, so there will be no chance for the Justices to hear what the new Administration would support.  The Court usually takes the federal government’s views very seriously.
• In the Arizona cases themselves, the Court is being asked in a variety of briefs to narrow significantly the scope of Section 2 and, if it cannot find a way to do that, to strike it down as unconstitutionally focused on race.

One of the Arizona laws at issue Tuesday would bar the counting of votes that are mistakenly cast in the wrong precinct even if they are otherwise valid.  The other would ban the collection of ballots by anyone other than a voter’s immediate family member or caregiver, a postal worker or an election official.  Those two provisions, a federal appeal court ruled, strike mainly at opportunities for black, Latino and Native-American voters.  It ruled that both laws violate Section 2 because of their impact on minorities, and that the ballot-collection ban was specifically intended to discriminate, thus violating both Section 2 and the Fifteenth Amendment (the 1870 amendment that outlawed denial of the right to vote based on race or color).

A major source of concern among liberal advocacy groups and the Democratic National Committee in challenging those laws is the way that Chief Justice John G. Roberts, Jr., has led a conservative majority in decisions that narrow protections of racial minorities.  In 2007, when the Court struck down school assignment laws based on students’ race, Roberts wrote: ‘The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Then, in a 2013 decision in an Alabama case (Shelby County v. Holder), Roberts and a majority made unenforceable the strongest federal weapon against racial discrimination in voting, when it ruled that Congress could no longer require states with a history of bias in voting to get advance clearance in Washington, D.C., for any change they wanted to make in their election procedures.  The majority said that the time had come to free those states from such controls under Section 5 of the Voting Rights Act of 1965 because outright discrimination had largely come to an end.  (The Democratic-controlled House of Representatives has passed a law to revive that approach, but there is little chance that it can be passed by the Senate as long as the filibuster remains available.)

As a direct result of the 2013 decision, groups seeking to protect minority voters’ rights have turned to reliance on the 1965 Act’s Section 2.  That has some advantage over Section 5: it applies nationwide not just in states with a history of racial discrimination, and can be used by voting rights advocates on their own initiative, without waiting for the Justice Department’s help.  It also has some advantage over suing directly under the Fifteenth Amendment, since that Amendment is violated only if the racial bias is explicitly intended by government.

But Section 2 cases are expensive to pursue, they put the burden on challengers to prove a violation, they move through the courts slowly, and often the provisions at issue are allowed to go into effect while the court challenge proceeds.

Still, it is what remains available, and it was used successfully by the Democratic National Committee in challenging the two Arizona laws.  So, what does Section 2 say, and how did the lower appeals court apply it in the cases now before the Justices?

Section 2 outlaws any election practice or procedure that discriminates on the basis of race, color or language minority.  In a 1980 decision, the Supreme Court ruled that the provision went no further than the Fifteenth Amendment – that is, it only outlawed intentional race discrimination in voting.  Congress reacted in 1982, expanding the provision to bar election requirements that denied a racial or language minority an equal opportunity to participate in the political process.  That is now usually referred to as a “results” test, which measures legality on the basis of how it affects minority voters’ access to the polls.

When the two Arizona laws were tested before the U.S. Court of Appeals for the Ninth Circuit, it ruled that Section 2 is violated if it puts a heavier burden on minority voters, even a small number of them, when the procedure outlaws a technique that is used more by minorities than by non-minorities. It said that the focus is not on how the challenged procedure fits into the overall scheme of voting, but rather on who was most affected by the procedure.  Using that test, it said both Arizona laws violated it, and it went on to find that the ballot-collection restriction was passed specifically to discriminate on the basis of race, violating both Section 2 and the Fifteenth Amendment.

Arizona state officials and the state Republican Party, arguing that other federal appeals courts have imposed more rigorous tests on those relying on Section 2, filed separate appeals to the Supreme Court.  They and their allies contend that Section 2 must look to how a specific law fits into the overall opportunity for all voters to cast ballots, rather than focusing only on how a minority voter reacts.  Emphasis on what minority voters find most convenient, they add, is too close to using race as the deciding factor, which equality principles forbid.

The questions before the Court:  Overall, what test should courts use in deciding whether a voting restriction violates either Section 2 of the 1965 law or the Fifteenth Amendment?  Applying the proper test, are Arizona’s out-of-precinct voting ban and the ballot-collection limit invalid?

Significance:  Given the very real possibility that, in an era of increased political polarization, the existing federal voting rights laws are not going to be expanded anytime soon by Congress to protect minorities more fully, the interpretation of them by the Supreme Court is crucial.  And with a majority repeatedly showing, at a minimum, a hesitancy to allow race to be a key factor in public policy, the chances seem quite real that Section 2 could be reduced in scope.

Although some of the legal briefs filed in these cases by the more conservative groups openly invite the Court to question the constitutionality of Section 2 as it is now written, the Court probably will not be interested in going that far.  The Court likely will resist the pleas of some groups to read Section 2 as if it actually required strong proof of racial hostility or indifference by a legislature before a voting technique would be at risk – in effect, making it very close to what is required to prove a constitutional violation under the Fifteenth Amendment.

What is most likely to emerge would be a multi-factor formula, focusing on what rationale a legislature had for adopting a voting technique, what impact that technique has on voters in general, whether there are signs that it has a clearly demonstrated (not incidental or minimal) negative effect only on minorities, and whether any such effect can be attributed to social factors rather than to the official policy choices that led to adoption of the technique.

It would be in keeping with the apparent views of the Court’s conservative majority to write a ruling that threatens fewer of the myriad techniques that are already on the election law books, or are now being considered by state legislatures.  Some members of the Court, in their reactions to disputes growing out of the 2020 election, have already shown themselves strongly inclined to leave state legislatures with a good deal of discretion as to how they shape election processes.

On Wednesday, the Court – as it did on Monday – will take a further at what the Constitution’s Appointments Clause requires.  This time, it will be examining how that clause applies to cases before judges in the Social Security system.