The 1965 Voting Rights Act has long stood as a symbol of the progress America has made in the struggle for civil rights and as a guardian of the right of all citizens to vote. Today, with two main provisions stripped of their power by the Supreme Court, the law has become a symbol of the weakening of resistance to the states’ efforts to restrict rather than expand and protect those rights.
In two decisions over eight years, the high court has taken away much of the law’s power, first in 2013 by gutting Section 5, which required states with a history of discrimination to seek clearance from the Justice Department before making any changes in election procedures, and on Thursday by limiting the potential for successfully challenging voting changes after they have been enacted under Section 2.
The decision on Thursday involved two provisions in an Arizona law, one that called for discarding ballots cast at the wrong precinct, the other prohibiting what is known as “ballot harvesting,” a controversial practice in which partisans or activists collect absentee or mail ballots and deliver them to polling places. In allowing those provisions to stand, the court did nothing surprising. Many court watchers expected that to happen.
But in a 6-to-3 decision that split along conservative-liberal lines, the court’s majority went much further and in doing so confirmed the ideological differences that now exist over voting rights.
The ruling further tilted the debate over voting rights in the direction of those who, in the name of election integrity, have called for and begun to enact laws that restrict voting. In some cases, these new laws will fall most heavily on the very minority voters that the 1965 act was designed to protect.
Beyond that, legislators in some states could feel emboldened to continue to enact changes that could make it easier to challenge or overturn elections or that would strip local officials, who have traditionally operated with nonpartisanship, of their powers to administer elections. The result could turn elections, the counting of votes and the certification process into partisan exercises that would undermine the integrity of the voting process.
The Biden administration had conceded in a February letter to the court that the two provisions in the Arizona law did not violate Section 2 of the Voting Rights Act. But Biden’s Justice Department took issue with the Trump administration’s views of Section 2 more broadly. After seeing the majority opinion on Thursday, Biden in a statement said the court “has now done severe damage” to the act.
This is one more moment in a battle that has been playing out all year, with Republican-controlled states marching forward with new laws, while a Democratic-controlled Congress remains stymied in its efforts to counter those actions with legislation that would put a floor underneath voting rules for federal elections. As one state after another has enacted new laws, Democrats have been hamstrung by their thin majority in the Senate and their inability to change the Senate’s filibuster rules.
Evelyn Hockstein
Reuters
Activists carry signs in reference to Sen. Joe Manchin (D-W.Va.) and U.S. Senate Republicans during a rally in support of the "For the People Act" voting rights legislation in front of the Supreme Court on June 23 in Washington.
That roadblock in Congress and the Supreme Court’s decision on the Arizona law have helped to narrow, if not close off, virtually every avenue for those who see the state changes as pernicious to democracy.
The House approved the For the People Act in the spring. The legislation covers voting procedures — automatic voter registration, mail ballots, early voting and the like — as well as changes designed to make redistricting less partisan, provide for some public financing of elections and toughen ethics rules.
The legislation is massive and perhaps overly so. A more limited compromise offered by Sen. Joe Manchin III (D-W.Va.) sought to make it more amenable to a broader group of lawmakers. When the Senate tried to begin debate on the issue last month, Republicans refused to even allow that.
That Democratic bill is in limbo unless the Senate changes its filibuster rules, something that Manchin and Sen. Kyrsten Sinema (D-Ariz.) have vowed to oppose. Democrats have no course of action other than hoping that, with time, both senators will change their minds as they consider the consequences of standing pat.
There is a second piece of proposed legislation that Democrats see as vital. Named after the late congressman and civil rights leader, the John Lewis Voting Rights Advancement Act was designed to put new life back into Section 5 of the Voting Rights Act.
The measure is months away from consideration, according to Democrats in the House and Senate. Once the measure is in final form, it would face the same hurdles to passage in Congress as does the For the People Act. If it were to overcome those obstacles, it could face the challenge of meeting constitutional muster by a Supreme Court with a conservative majority cemented by the three justices nominated by former president Donald Trump.
The Justice Department under Attorney General Merrick Garland has sued the state of Georgia over its newly enacted voting legislation, claiming it is racially discriminatory. Such cases are never easy. In the face of what the Supreme Court did on Thursday, the lawsuit faces an even steeper path to success.
There are debatable issues around the broad question of voting rights and procedures. There are questions about how much restrictive laws actually reduce voter turnout — or how much expansive laws expand it. Democrats have long opposed most voter identification laws, but when Manchin included one in his proposal, albeit one that allowed for alternative forms of identification such as utility bills, many in his party got behind it. Republicans still weren’t willing to give the Manchin proposal consideration, suggesting that in this charged environment, there is no space for real debate.
Caitlin O'Hara
For The Washington Post
Pro-Trump demonstrators protest outside the elections center in Phoenix, Ariz., on Nov. 7, 2020.
Trump helped to accelerate all this. His repeated false claim of a stolen election, his continued effort to encourage other states to undertake the questionable examination of ballots underway in Arizona’s Maricopa County and his rhetorical battering of what has been an election system free of widespread fraud have created the current climate.
The cover of the new issue of the Economist magazine pinpoints what its editors see as “the real risk to America’s democracy.” The editors write, “For Democrats the threat to elections is about who can cast votes. . . . Instead, the real threat comes after votes have been cast.”
Pointing to state-level changes that could strip local officials of their powers and replace election administrators with partisan lawmakers, the magazine notes that such provisions “might seem like distant, bureaucratic changes. In fact, they raise the chances of a contested election that the courts cannot sort out. They weaken America’s voting system in ways that will outlast the hysteria over the 2020 result.”
This “infection of partisanship” in the administration of elections, as Stanford University Professor Nate Persily calls it, is something new, as is the pressure on local election officials from partisan legislators and from an angry Trump base.
Republican legislators, who claim Democrats’ charges about the new laws are overblown, are moving forward. Lower courts now will be less likely to overturn restrictions offered in the name of ballot integrity and protection against serious voter fraud, for which these is still no credible evidence. Democrats currently have no easy path nor a clear strategy to counter changes in the states and the larger threat they pose.
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