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Right-Wing Supreme Court Justices May Weaken Key Provision of Voting Rights Act

The court may strike another key provision of the act as the House passes a sweeping election reform package.

Part of the Series

The partisan battle over voting rights is boiling over this week, as conservative Supreme Court justices are poised to uphold two provisions of an Arizona voting law that the Democratic National Committee (DNC) argues violates the landmark Voting Rights Act, and the House passes the For the People Act, the most sweeping election reform package in decades.

On Tuesday, Supreme Court justices signaled their willingness to weaken another key provision of the historic Voting Rights Act that prohibits laws resulting in racial discrimination. The Arizona provisions being challenged are common throughout the nation, requiring in-person Election Day voters to cast their votes in their assigned precinct and specifying that only certain persons may deliver someone else’s completed mail-in ballot to a polling place.

The Voting Rights Act has sustained other recent blows. In 2013, Chief Justice John Roberts wrote the 5-4 majority opinion in Shelby County v. Holder, gutting Section 5 of the act, which required states with a history of discrimination to obtain permission from the federal government or courts before enacting new voting laws. Since then, challengers to voting restrictions have looked to Section 2 of the act, which prohibits voting regulations that limit the right to vote based on race. Now, even Section 2 is under attack.

At one point during telephone arguments Tuesday, Justice Roberts noted that a bipartisan commission determined that laws like Arizona’s may be necessary to “combat voter fraud.” Justice Brett Kavanaugh agreed, asking a DNC lawyer whether there might be a “strong justification” for the Arizona provisions. Several studies, however, have shown fraud by voters at the polls is so rare that it is virtually nonexistent.

It remains unclear what kind of new test the justices will settle on. Regardless, the justices’ comments pave the way for Republican state lawmakers working at a fever’s pace to strip away voting rights and impose new restrictions based on false and racist allegations of “voter fraud.”

GOP Goes All In on Suppression

The Brennan Center for Justice released an update to its Voting Laws Roundup 2021, tracking, as of February 19, at least 253 bills to restrict voting access introduced in 43 states already this year — more than four times as many voter suppression bills as last year. The bills are largely premised on the demonstrably false and racist narrative of “voter fraud.” Trump deployed the voter fraud myth widely after losing the 2020 election.

The vast majority of the suppression bills would restrict or eliminate mail voting and other voter access measures made in response to the pandemic. The other new restrictive bills impose stricter voter ID requirements, limit effective voter registration policies and enable more aggressive voter roll purges.

“This is the same Big Lie that prompted the attempted coup on the Capitol on January 6, and that state lawmakers are using to justify their attempt to limit voter access.”

“Many of these bills have been justified by lawmakers either in the text of the bill, in the preamble, or by lawmakers in the media and in public by claiming there’s a need to respond to voter fraud or election irregularities that don’t exist,” says Eliza Sweren-Becker, who is voting rights and elections counsel at the Brennan Center. “This is the same Big Lie that prompted the [attempted coup] on the Capitol on January 6, and that state lawmakers are using to justify their attempt to limit voter access.”

Hotly contested swing states in the 2020 election cycle are the sites of some of the most restrictive bills. Arizona and Georgia lead the nation in proposed voter suppression legislation in 2021, with at least 22 suppressive bills each as of February 19. Republicans in the Georgia House recently passed legislation voting rights advocates are calling the worst since the Jim Crow era, targeting absentee ballot drop boxes, limiting early and weekend voting, and shortening the length of period for runoff elections and absentee ballot deadlines.

Meanwhile, bills introduced in Oklahoma and Arizona would strip voters’ ability to choose presidential electors directly, and instead hand that power to the state legislature. The Oklahoma bill seeks to have the state legislature choose presidential electors unless and until Congress passes a federal law requiring voter ID and paper ballots. Arizona’s bill empowers the state legislature to select presidential electors and to revoke an elector’s certification by majority vote any time before the presidential inauguration.

The bills targeting presidential electors come after Republican leaders in Pennsylvania reportedly discussed the direct appointment of presidential electors ahead of the 2020 general election as a way to bypass the state’s popular vote. Many election experts determined that the state legislature would be unable to pull off the maneuver because existing state law establishes that voters choose presidential electors.

“The proposed restrictions that we’re seeing on mail voting don’t just go to the expansions that were made last year during COVID; the restrictions would cut back on policies that existed, in many cases, long before COVID.”

Nearly half of the suppressive bills introduced so far seek to beat back mail voting after the pandemic enabled historic — and valid — voter turnout in the 2020 election cycle. State lawmakers are now targeting mail voting at every stage, with bills to limit who can vote by mail, make it harder to obtain mail ballots, and erect barriers to casting mail ballots.

“The proposed restrictions that we’re seeing on mail voting don’t just go to the expansions that were made last year during COVID; the restrictions would cut back on policies that existed, in many cases, long before COVID,” Sweren-Becker tells Truthout. “It’s not just ‘go back to normal.’”

Federal Bills Aim to Expand Ballot Access

Voting rights advocates and Democrats are countering the Supreme Court and a raft of state-level suppressive bills by pushing federal and state legislation that expands access to the ballot. In a near-party line vote, the House voted 220-210, to pass the For the People Act, or House Resolution 1, on Wednesday night.

If passed in the Senate, H.R. 1 would overhaul just about every aspect of the electoral process: curtailing restrictions on voting imposed under the guise of “election security,” restricting partisan gerrymandering, and curbing the influence of big money in politics by requiring dark money groups to disclose donors and establishing reporting requirements for online political ads.

The bill has the backing of the Biden administration and would appropriate nearly $2 billion for upgrades to election infrastructure, require future presidents to disclose their tax returns, and restore voting rights to people who have completed felony sentences.

“In prioritizing democracy reform at the start of the new Congress, House Democrats have kept their promise to tackle the structural reforms needed to repair our broken democracy. It’s far past time to reduce the power of the white, wealthy and well-connected who have abused their power in an attempt to silence communities of color across the country,” Reggie Thedford, deputy political director at voting rights group Stand Up America, told Truthout. “We now implore the Senate to immediately take up this bill and ensure Jim Crow-era rules like the filibuster don’t stand in the way of progress.”

The group is one of 190 progressive organizations that make up The Declaration for American Democracy coalition that has pushed for the bill at the state and federal levels since its first introduction in the House in 2019.

“It’s far past time to reduce the power of the white, wealthy and well-connected who have abused their power in an attempt to silence communities of color across the country.”

Proponents like Thedford argue that national rules and procedures are needed to ensure fair access to the ballot. The bill mandates access to early voting, same-day registration and other expansive changes that Republicans are currently seeking to limit or shut down entirely. Without the elimination of the filibuster, it’s unlikely that Democrats can muster the 60 votes needed to pass the bill in the Senate, but Democrats are discussing other options, including lowering the threshold to break a filibuster, or creating a workaround that would allow the legislation to be exempt.

The bill is especially critical as state legislatures begin redrawing congressional districts after the 2020 Census. H.R. 1 requires that the maps be drawn by independent commissions to prevent Republicans from gerrymandering districts in ways that dilutes the votes of Democratic-leaning communities of color. With Republicans controlling the majority of statehouses, this year’s redistricting alone could help the GOP retake the House.

While H.R. 1 expresses support for statehood and full voting rights for 705,000 citizens of Washington, D.C., voting rights advocates are also cautiously optimistic about the reintroduction of standalone legislation that would give D.C. statehood and full voting representation in Congress in January. The bill has a record number of sponsors this time around, as public support for statehood has reached an all-time high in the wake of the January 6 Capitol breach, during which the District was unable to activate the National Guard.

Puerto Rico is also renewing its push for statehood. Rep. Darren Soto and Republican Del. Jenniffer González-Colón, Puerto Rico’s nonvoting member of Congress, introduced legislation Tuesday to make the U.S. territory a state. But Rep. Alexandria Ocasio-Cortez opposes the legislation, since it runs counter to a measure she put forward with Rep. Nydia Velázquez that would allow voters to elect delegates to a legislative body tasked with determining solutions for the territory.

Democrats also hope to pass the John R. Lewis Voting Rights Act that would restore Section 5 of Voting Rights Act and strengthen the provisions in it to protect access to the ballot for voters of color by lowering the threshold for obtaining a court order against discriminator voting restrictions, and restoring the availability of neutral federal observers.

Even as it moved H.R. 1 forward, the House rejected Rep. Cori Bush’s amendment on Tuesday that would have granted voting rights to currently incarcerated people. Organizers have vowed to continue pushing to grant the vote to the roughly 2.2 million people behind bars.

State-Level Pro-Democracy Bills

Meanwhile, at the state level, lawmakers are also pushing to expand access to mail voting in blue states like New York and New Jersey, seizing on an energized electorate and growing demands for pro-democracy reforms. As of February 19, at least 43 states have introduced 704 bills to expand voting access, according to the Brennan Center.

Many of the expansive voting bills address absentee voting procedures, with most seeking to allow all voters to vote by mail in elections and eliminate the excuse requirement. Such measures would make permanent pandemic-related policies that many states temporarily instituted in 2020.

“What we are seeing this year is consistent with what we’ve seen in past years in that there is a push-pull where some states are trying to restrict voting access and other states are trying to make it easier for Americans to cast their ballots, and those things are happening at the same time,” the Brennan Center’s Sweren-Becker says. “But what is different this year is just the sheer volume of it.”

“There is a push-pull where some states are trying to restrict voting access and other states are trying to make it easier for Americans to cast their ballots, and those things are happening at the same time. What is different this year is just the sheer volume of it.”

Meanwhile, the movement to abolish the Electoral College is continuing as state legislatures introduce bills that would award electoral votes to the presidential candidate who wins the national popular vote. At least 14 states have introduced proposals to adopt the national popular vote interstate compact. As Truthout has previously reported, “the compact only becomes effective when states representing a majority of electoral votes enact it. Once enacted, at least 270 presidential electors would give their vote to the candidate receiving the most popular votes in all 50 states and the District of Columbia. Currently, the compact’s 15 states and D.C. account for 196 electoral votes.”

But as the compact moves forward in some states, others are seeking to change the way they allocate their electoral votes altogether. In Nebraska, one of two states that allocates electors by congressional district on a proportional basis, a bill proposes to instead allocate electors using the standard winner-take-all system. The bills comes after Nebraska’s electoral votes were split in the 2020 election.

On the other hand, a Wisconsin proposal would adopt the current Nebraska model, allocating electors by district. A Mississippi bill would also appoint presidential electors by district, with two electors chosen at large. Nebraska has seen a number of bills seeking to repeal its proportional allocation, but none have passed. However, this year’s bill may have more steam after Biden picked up an electoral vote in November.

John Koza, chairman of National Popular Vote Inc., the nonprofit behind the model compact bill, is hopeful about the bill’s prospects in Virginia and tells Truthout that the nonprofit is actively lobbying in about 10 states. More bills are expected to be introduced in the coming months, he says.

He called the bills in Oklahoma and Arizona that would strip voters’ ability to choose presidential electors outrageous, telling Truthout the bills claim to “be able to veto the voters after they vote.” Arizona’s bill is particularly rife with legal problems, he says, since it proscribes the ability to reverse the voters’ will up until the presidential inauguration, even though the Constitution says states’ electoral votes must be cast on the same day in mid-December.

Koza and other advocates say the Democrats must seize the moment and pass such pro-democracy measures while they maintain control of Congress and the executive if they are to even begin to level the playing field.