The GOP Is Gutting the Voting Rights Act. We Cannot Allow Their Racism to go Unchallenged | Opinion

For decades, the Voting Rights Act of 1965 has been the nation's best defense against racially discriminatory voting laws. And for decades, its vital role in ensuring that minority voters have equal access to the ballot was acknowledged and affirmed across the political divide. But in 2013, a 5–4 majority of the Supreme Court gutted the landmark civil rights law.

Now, in a case called Brnovich v. DNC, the Arizona attorney general and lawyers for the Republican Party are asking the justices to weaken it further. If they succeed in persuading the court, the result will be a blow to racial justice and democracy in this country.

On Tuesday, the court heard oral arguments in the case. It is a challenge to two Arizona election policies filed under Section 2 of the Voting Rights Act, which prohibits policies that make it harder for minority voters to participate in elections than white voters. One of the Arizona policies requires any ballot cast in the wrong precinct to be discarded. The other prohibits voters from having anyone other than an immediate family member or caretaker turn in their mail ballots.

The Ninth Circuit Court of Appeals found that both policies abridge the right to vote for Arizona's Native American, Latino, and Black voters. These voters are more likely to vote out of precinct and use ballot collection services. That's because they face frequent changes to polling place locations, high rates of residential mobility, and limited access to mail service. The court also held that the ballot collection ban was enacted with the intent of discriminating on the basis of race.

But Arizona's attorney general and the Republican Party are not just defending these specific Arizona policies. They are asking the court to seriously limit Section 2 of the Voting Rights Act, making it harder for voters to challenge discriminatory practices in the future.

A number of conservative allies have joined them in making these arguments. Senator Ted Cruz and 10 of his senate colleagues, along with a conservative activist legal group called the American Constitutional Rights Union (ACRU) both filed friend of the court briefs.

Voters in Miami-Dade
Hispanic voters go to the polls for early voting at the Miami-Dade Government Center on October 21, 2004 in Miami, Florida. G. De Cardenas/Getty Images

Some of their arguments are willfully ignorant, asking the justices to pretend that seemingly neutral policies don't interact with real-world factors to disadvantage voters of color. Others are outright radical, challenging the constitutionality of Section 2. The court need not even take the radical approach to wreak havoc. If it narrows Section 2's application in any way, the consequences could be disastrous for the voting rights of nonwhite voters.

The 2020 election provided us with many reminders of the role that racism still plays in our democracy. There were reports of voter intimidation at the polls, calls from the former president to throw out the ballots of voters in cities with large Black populations, and an armed insurrection led by white supremacists aimed at overturning the results.

Now, driven by the Big Lie that the election was "stolen"—a lie that has particular appeal for those that sympathize with white nationalists—state legislatures across the country have introduced, as of mid-February, 253 bills that would make it harder to vote.

In this environment, we need a strong Voting Rights Act to fight discriminatory election policies. But thanks to the Supreme Court's 2013 ruling, Section 2 is one of the only tools we have left. The court rendered Section 5 inoperable, freeing states with a history of racial discrimination from the requirement of getting federal approval for changes to their voting practices. The court justified its 2013 decision in by questioning whether voting discrimination was still enough of a problem to justify continued preclearance.

As we face an onslaught of attacks on democracy and a disturbing rise in blatant bigotry, let's hope our nation's highest court affirms the importance of the most powerful and effective tool we have.

Sean Morales-Doyle is Deputy Director of the Voting Rights and Elections Program at the Brennan Center for Justice at NYU Law.

The views in this article are the author's own.