Chemerinsky: Voting rights cases before SCOTUS could have profound effects on future elections
Erwin Chemerinsky. Photo by Jim Block.
On Tuesday, the U.S. Supreme Court will hear oral arguments in important cases concerning the meaning of the Voting Rights Act of 1965: Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee. The cases involve Section 2 of the act, which prohibits voting practices or procedures that discriminate on the basis of race, color or language.
The court’s decision is likely to determine the scope of Section 2 and the extent to which it can be used to challenge election procedures that have the effect of discriminating against minority voters.
The United States has a long and disgraceful history of race discrimination with regard to voting. The 14th Amendment, ratified in 1868, provides that no state may deny any person equal protection of the laws. Two years later, the 15th Amendment was ratified to explicitly deal with the problem of race discrimination in voting. It states: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color or previous condition of servitude.”
As a result of these amendments and Reconstruction, more than a half million African American men in the South became voters in the 1870s. There was a dramatic effect to this enfranchisement of Black men. In Mississippi, for example, former slaves were half of the state’s population, and Mississippi elected two Black U.S. senators and a number of Black state officials, including a lieutenant governor.
Because of the compromise that decided the 1876 election, Reconstruction ended and Northern troops were withdrawn from the South. Southern states quickly adopted laws to deny rights to former slaves and to segregate every aspect of life. Southern states also adopted many laws designed to keep Blacks from voting. Poll taxes were adopted, requiring that individuals pay a fee in order to vote. Literacy tests were adopted, where a person seeking to register to vote had to read a section of the state constitution to a county clerk and then explain it.
The clerk, who was always white, had discretion to decide whether the person was sufficiently literate. Southern states also enacted a “grandfather clause” that created an exception to the literacy tests for those whose grandfathers were qualified to vote before the Civil War. Obviously, this benefited only white citizens.
These actions worked. For example, in Mississippi, the percentage of Black voting-age men registered to vote fell from over 90% during Reconstruction to less than 6% in 1892. Beyond the laws that kept African Americans from voting, there was intimidation directed at those who tried to register and vote. As a result, just three percent of voting-age Black men and women in the South were registered to vote in 1940. In Mississippi, under one percent were registered.
The civil rights movement worked to combat race discrimination in voting and to increase Black voter registration. Still, in 1964, only about 43% of adult Black men and women in the South were registered to vote. In Alabama, though, only 23% of African Americans were registered to vote, and in Mississippi less than 7% of voting-age Blacks were registered.
The key change occurred when Congress passed the Voting Rights Act of 1965, one of the most important civil rights statutes adopted in American history. Section 2 of the Voting Rights Act prohibits voting practices or procedures that discriminate on the basis of race or against certain language minority groups, and lawsuits can be brought to challenge state or local actions that are alleged to violate Section 2.
In 1980, in City of Mobile v. Bolden, the Supreme Court held that proving race discrimination in voting—whether under the Fourteenth Amendment’s equal protection clause or the Fifteenth Amendment or Section 2 of the Voting Rights Act—requires proof of a discriminatory intent. In 1982, Congress amended the Voting Rights Act to provide that discriminatory impact would be sufficient to show a violation of the law.
Section 2 was amended to provide that a plaintiff could establish a violation of the section if the evidence established that, in the context of the “totality of the circumstance of the local electoral process,” the standard, practice or procedure being challenged had the result of denying a racial or language minority an equal opportunity to participate in the political process.
Another crucial provision of the Voting Rights Act, Section 5, was effectively nullified by the Supreme Court in Shelby County v. Holder in 2013. Section 5 required that jurisdictions with a history of race discrimination in voting get preclearance from the attorney general before significantly changing their election systems. In a 5-4 decision, the court said that Congress had relied on outdated information in extending this provision for 25 years and that it violated the principle that Congress must treat all states alike.
The cases now before the Supreme Court
The current cases challenge two provisions of Arizona law. One provision says that a ballot is not to be counted if it was cast by a person outside of his or her precinct. The other statutory provision prohibits “ballot harvesting,” making it a felony to collect and deliver another person’s completed ballot (with exceptions for family members, caregivers, mail carriers and election officials)
Lawsuits were brought by the Democratic National Committee and voters challenging these provisions. They argued that these Arizona laws violate the Voting Rights Act because they have a discriminatory effect against minority voters. The plaintiffs also alleged a discriminatory intent behind the laws and claimed that they violate the Constitution as well as the Voting Rights Act.
The U.S. District Court, after a 10-day trial, ruled for the defendants, and the San Francisco-based 9th U.S. Circuit Court of Appeals, in a 2-1 decision, affirmed. But the 9th Circuit granted en banc review and reversed, ruling for the plaintiffs in a 7-4 decision. Judge William Fletcher wrote the opinion for the court.
The court said, “We hold that Arizona’s policy of wholly discarding, rather than counting or partially counting, out-of-precinct ballots, and H.B. 2023’s criminalization of the collection of another person’s ballot, have a discriminatory impact on American Indian, Hispanic and African American voters in Arizona, in violation of the ‘results test’ of Section 2 of the VRA. We hold, further, that H.B. 2023’s criminalization of the collection of another person’s ballot was enacted with discriminatory intent, in violation of the ‘intent test’ of Section 2 of the VRA and of the Fifteenth Amendment.”
The Court of Appeals said that there is a two-part test for deciding whether a voting practice has a discriminatory impact that violates Section 2 of the Voting Rights Act. First, the plaintiffs must show that the policy or law being challenged disproportionately affects the ability of a racial minority group to “participate in the political processes and to elect candidates of their choice.”
If so, the second question is whether there is a link between the challenged policy or law and social and historical conditions, creating the inequality in opportunities. The 9th Circuit found that both the prohibition on out-of-precinct voting and on ballot harvesting violated this test. For example, the court noted that during the three general elections leading up to the 2020 election, Native Americans, Hispanics and African Americans in Arizona were twice as likely as whites to vote outside of the precinct to which they had been assigned, and therefore, to have their votes not counted.
The court likewise said that the prohibition on ballot harvesting had a discriminatory effect against minority voters and moreover, it was motivated by a discriminatory intent.
Supreme Court review
The Supreme Court granted certiorari on two issues: 1) Whether Arizona’s out-of-precinct policy, which does not count provisional ballots cast in person on Election Day outside of the voter’s designated precinct, violates Section 2 of the Voting Rights Act; and (2) whether Arizona’s ballot-collection law, which permits only certain persons (i.e., family and household members, caregivers, mail carriers and elections officials) to handle another person’s completed early ballot, violates Section 2 of the Voting Rights Act or the 15th Amendment.
The cases are enormously important because the court will likely address what is needed for a violation of Section 2 of the Voting Rights Act. The federal courts of appeals have split—as did the judges of the 9th Circuit—over what is the appropriate test for applying Section 2.
One interesting aspect of the case before the court involves the shift from the Trump to the Biden administration. The Trump administration filed a brief on behalf of Arizona to reverse the Ninth Circuit. On Feb. 16, the solicitor general’s office informed the Supreme Court that the new administration reconsidered the issues in the case and that it “does not disagree” with the federal government’s earlier stance that the Arizona laws do not violate Section 2, but said that the Department of Justice “does not adhere to the framework for application of Section 2 in vote-denial cases” laid out in the Trump administration’s brief.
There are two widely different perspectives on voting in the United States. Republicans see voter fraud as a major problem and favor laws like Arizona’s that limit voting. Democrats see voter suppression, especially of minority voters, as a major problem and see Arizona’s law as accomplishing exactly that. How the court decides these cases could have a profound effect on what state laws are enacted and allowed with regard to voting, and who votes and how elections are conducted for many years to come.
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of several books, including The Case Against the Supreme Court (Viking, 2014). His latest book is The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman (Oxford University Press, 2020).