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‘This is not a great outcome’: Supreme Court ruling brings fear of explosion in voting restrictions

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Donald Trump's false claims about the 2020 presidential election may have failed to gain traction in the courts, but the former president's political base is racking up judicial wins in the country's voting rights war.

Conservative activists succeeded in getting 17 states to pass more than two dozen laws tightening election procedures since January. The GOP has also done well defensively, blocking congressional Democrats from enacting federal changes last month.

Heading into the final weeks of summer, liberals worry their opponents will be encouraged to pursue further restrictions after a U.S. Supreme Court decision this month upheld two Arizona election measures, which some legal scholars warned guts the Voting Rights Act of 1965.

Melissa Murray,  law professor and leading expert in constitutional law
This is not a great outcome for those who believe that voting is truly important in a democracy, and for those who generally are more marginalized from voting.

"This is not a great outcome for those who believe that voting is truly important in a democracy and for those who generally are more marginalized from voting," said Melissa Murray, a New York University law professor and expert in constitutional law.

Left-leaning activists said the 6-3 decision signals that the high court has turned its back on protecting communities of color against voter suppression laws. 

They forecast a gloomy 2022 of draconian rules coming through the legislative pipeline in states that will have a disproportionate impact on Black, Hispanic and Native American voters.

"This decision is saying that democracy is for white people and that it is OK if a law creates an additional burden on a community," said LaTosha Brown, co-founder of Black Voters Matter, which has led mobilization efforts throughout the South.

All eyes are on Texas, other statehouses

One of the first places where activists are bracing for conservatives to take advantage of the high court's decision is Texas, where lawmakers started a special session this week to deal with "unfinished business," according to Republican Gov. Greg Abbott.

Texas Gov. Greg Abbott
Texas Gov. Greg Abbott Eric Gay/AP

Among the items on the agenda is a controversial Republican-backed bill that Democrats argue targets racial minorities by overhauling the election process through changing early voting hours on Sunday.

Sean Morales-Doyle, acting director of the Voting Rights and Elections Program at the Brennan Center for Justice, a liberal think tank, said there is no sign Republican-controlled legislatures will relent.

"The Supreme Court's decision will certainly embolden some who are interested in restricting the right to vote," he said. "There will be some who feel that this gives them permission to do more."

Morales-Doyle said there is hope that President Joe Biden and congressional Democrats will take steps to expand access before midterm elections.

Vice President Kamala Harris, who is in charge of the White House's voting rights fight, unveiled a $25 million Democratic investment Thursday to "assemble the largest voter protection team" in history.

The US Supreme Court MANDEL NGAN, AFP VIA GETTY IMAGES
Sean Morales-Doyle, acting director of the Voting Rights and Elections Program at the Brennan Center
The Supreme Court's decision will certainly embolden some who are interested in restricting the right to vote. ... There will be some who feel that this gives them permission to do more.

"We are fighting back," Harris told an audience at Howard University. "In states, we have successfully blocked some anti-voter bills from becoming law – and others are being challenged in court. In Congress, we are working to pass two bills into law that would protect and strengthen voting rights."

Morales-Doyle said mobilization efforts in respective states must remain active.

"Sometimes the resistance against these bills in the states succeeds," he said. "The bill in Georgia, for example, was a terribly restrictive bill as well. But actually, some of the most restrictive pieces of it were cut out along the way in response to an organized opposition."

GOP: Arizona case win for voters

In conservative circles, the Supreme Court's decision in Arizona is seen as a step to protect people's faith in the ballot box.

Arizona Attorney General Mark Brnovich, who successfully argued the case, told USA TODAY the six justices who ruled in his favor simply established that states have the legal right to create their own guidelines.

"I do not believe that election integrity should be a partisan issue," Brnovich said. "Everyone deserves to know that their vote has been accurately counted and to have confidence in the election results."

On April 23, 2021, on the Supreme Court from left: Justice Samuel Alito, Justice Brett Kavanaugh, Justice Clarence Thomas, Justice Elena Kagan, Chief Justice John Roberts, Justice Neil Gorsuch, Justice Stephen Breyer, Justice Amy Coney Barrett and Justice Sonia Sotomayor.
On April 23, 2021, on the Supreme Court from left: Justice Samuel Alito, Justice Brett Kavanaugh, Justice Clarence Thomas, Justice Elena Kagan, Chief Justice John Roberts, Justice Neil Gorsuch, Justice Stephen Breyer, Justice Amy Coney Barrett and Justice Sonia Sotomayor. Erin Schaff/ Pool photo

Proponents of stricter rules said it is unfair to try to connect all of the changes pursued by Republicans at the state level to former President Trump's accusations about the election. The Arizona case stems from a pair of laws passed before he was elected.

"The legislation you're seeing now, regardless of whatever it was Donald Trump said post-election, is a reaction to a lot of the pre-election changes that the left was seeking," said Republican election attorney Jason Torchinsky, who filed a brief backing Brnovich.

Torchinsky said what's been missed in the political frenzy is how states need to  update the rules around procedures such as mail-in voting, which many states used for the first time during the coronavirus pandemic. He said that raised legitimate questions among conservatives who don't agree with Trump's false assertions about the election.

Supreme Court hears arguments on Arizona's voting rules
C-Span

"Historically, there have been all kinds of checks in place to verify people's identity when they come to vote," Torchinsky said. "With mail balloting, you have less of an opportunity to do that, so it makes sense that there are going to be controls put in place that you know who is actually requesting and casting absentee ballots."

Of the two Arizona policies at issue in the Supreme Court case,  the one limiting how voters return absentee ballots is the most contentious. 

Supporters have long argued the practice – called "ballot harvesting" by critics – is meant to help low-income voters, especially those who cannot locate their polling place or lack transportation or mail service. An appeals court finding leading up to the Supreme Court case, for instance, showed only 18% of Native Americans in Arizona had access to home mail service.

Twenty-six states allow a voter to assign another person to return a ballot, according to the nonpartisan National Conference of State Legislatures. Many other state laws are silent on the matter.

Third-party individuals and groups collecting ballots on behalf of voters is something both parties engaged in during past elections. That thinking has changed on the political right in large part because of Trump and a chorus of his supporters who maintain the election was stolen.

Jason Snead, executive director of the Honest Elections Project, a group founded by former Trump adviser Leonard Leo that advocates for stricter voting laws, said his organization has never defended the former president's assertion that the election was stolen, and he criticized the rampage by Trump's followers at the Capitol in January to disrupt the congressional confirmation of Biden's victory.

But he said there is a legitimate reason many want to "tighten the nuts and bolts" of voting policies.

"You don't wait to lock your front door until after you've been robbed," Snead said. "Everyone knows you lock your front door at night, whether you've been robbed or not." 

In defending election changes, GOP operatives and lawyers often call attention to the 2018 congressional race involving North Carolina Republican Mark Harris, who was forced to drop out after an investigation into a GOP operative illegally tampering with collected absentee ballots.

Snead said that case underscores why allowing people with a vested interest in the outcome to collect ballots is rife for misbehavior – whether fraud is found to be widespread or not.

"The issue is not when voters, like the elderly or sick, need to get help or that they should not be able to get help," he said. "The question is who should be providing that help, and what protections do there need to be in place in order to ensure the sanctity of voting process."

The Honest Elections Project released a statement Thursday, the day Texas legislators convened for their special session, saying election reform "deserves open and honest debate," including discussion on "stronger bans on ballot (harvesting)."

DROP BOX VOTING RICK BOWMER, AP
Jason Torchinsky, Republican election attorney
The way we run elections are evolving, and I think states as laboratories of democracy should have the flexibility to evolve and change as people's voting habits change and as policies change.

Whether Lone Star State officials take heed, legal thinkers and political operatives on the right aren't shying away from the possibility of seeking those provisions in other states in the coming months.

"Elections are an area where there is essentially a constant need for change because a lot of what's happening is subject to change regularly," Torchinsky said. "You look back 30 years ago, the number of states where you could vote absentee, no excuse was extremely limited. Now, it's more than half the country. The way we run elections are evolving, and I think states as laboratories of democracy should have the flexibility to evolve and change as people's voting habits change and as policies change." 

Voting Rights Act on ‘last leg’

For liberals, this latest chapter in the fight over U.S. elections is more than a political setback before next year's midterms.

Many view the Arizona case as the death knell for the Voting Rights Act, the landmark 1965 legislation achieved from the civil rights movement.

"What is tragic here is that the court has (yet again) rewritten – in order to weaken – a statute that stands as a monument to America's greatness, and protects against its basest impulses," Justice Elena Kagan wrote in a dissent for the high court's liberal wing.

Justice Elena Kagan
What is tragic here is that the court has (yet again) rewritten — in order to weaken — a statute that stands as a monument to America's greatness, and protects against its basest impulses.

Kagan referred to Shelby County v. Holder, a case in 2013 when the Supreme Court eliminated Section 5 of the Voting Rights Act, which for decades required states with a history of racially discriminatory laws, including Arizona, to obtain federal approval before making any voting rule changes.

Without the requirement of federal oversight, voting rights advocates leaned on another provision – Section 2 – which allowed litigation against voting restrictions that discriminate, whether intentionally or not.

Liberals fret that part of the act is in jeopardy after the high court's conservative majority concluded that the burdens imposed by the two Arizona laws were modest and acceptable.

Further, the court held, any racial disparity in Arizona was too small to violate federal law.

"Voting takes time and, for almost everyone, some travel, even if only to a nearby mailbox," Justice Samuel Alito wrote in the majority opinion. "Mere inconvenience cannot be enough."

Murray, the NYU law professor, told USA TODAY the ruling creates a higher legal bar in terms of proving discrimination for any voting rights challenge. She said the Voting Rights Act is "definitely on its last leg." 

President Lyndon Johnson signs the Voting Rights Act of 1965 on Aug. 6.  Surrounding the president, from left above his right hand, Vice President Hubert Humphrey; Speaker John McCormack; Rep. Emanuel Celler, D-N.Y.; first daughter Luci Johnson; and Sen. Everett Dirkson, R-Ill.  Behind Humphrey is House Majority Leader Carl Albert of Oklahoma; and behind Celler is Sen. Carl Hayden, D-Ariz.
President Lyndon Johnson signs the Voting Rights Act of 1965 on Aug. 6. Surrounding the president, from left above his right hand, Vice President Hubert Humphrey; Speaker John McCormack; Rep. Emanuel Celler, D-N.Y.; first daughter Luci Johnson; and Sen. Everett Dirkson, R-Ill. Behind Humphrey is House Majority Leader Carl Albert of Oklahoma; and behind Celler is Sen. Carl Hayden, D-Ariz. Associated Press

The court did not establish a test for lower courts to use in potential litigation over similar laws, but rather set up five factors Murray described as favoring restrictions that do not fully address questions about the "mere inconvenience" mentioned in the majority opinion.

Alito's opinion asserted that because voting requires "some effort," people should expect the "usual burdens of voting." When it comes to discrimination, he said, the courts must consider the "size of any disparities" on members of a different racial or ethnic group.

That concerns voting rights advocates, given the act's decadeslong reliance on the effects-based theory of liability – that even a neutral policy change can disproportionately affect one group compared with another.

“Everybody understands that in this day and age, there is no one who's going to stand on the floor of any statehouse saying, ‘You know, what I really want to do with this law is to stop Black people and Native Americans from voting,’” Murray said. "No one is ever going to say that, so it's really this nod to more subtle changes that certain restrictions are going to disproportionately impact certain communities."

Grassroots activists in the middle of the political fight said the court ruling ignores practical roadblocks that make it harder for certain groups to vote, such as ballot drop boxes being less available to Indigenous voters on reservations in Arizona.

"Now the burden is you have to show whether it was intentional," said Brown, the Black Voters Matter co-founder. "I deal with intentional and unintentional racism every day. All racism is intentional."

Asked about liberal criticism that the case he argued paves the way for racially discriminatory election laws, Brnovich bristled, saying political activists use "inflammatory language to push their agenda."

He noted that Arizona has allowed no-excuse absentee voting since 1991, "which is something that many other self-proclaimed progressive jurisdictions" do not offer.

"Those states could learn a lot from Arizona," Brnovich said.

Legal observers have pointed to Kentucky as an example of bucking the trend pursued by Republican-led legislatures. Kentucky, a right-leaning state, passed legislation expanding voting access while establishing new security practices.

McCracken County residents vote at the Robert Cherry Civic Center in Paducah, Ky., Tuesday, Nov. 8, 2016.
McCracken County residents vote at the Robert Cherry Civic Center in Paducah, Ky., Tuesday, Nov. 8, 2016.

The Bluegrass State, which had some of the country's more restrictive laws until the pandemic forced a bipartisan compromise during the 2020 election cycle, allows three days of in-person early voting; permits people to "cure" their absentee ballots to avoid it being discarded; and establishes vote centers where residents from any precinct can cast their ballot.

Republican Michael Adams, Kentucky's secretary of state, said that although he opposes ballot harvesting, state and federal policymakers could lower the temperature around the voting rights debate next year by heeding his state's bipartisan approach.

"I'm very dubious of election bills written by think tanks on both sides," he said.

Congress invited Adams to discuss the state's changes before a House committee hearing Monday.

"Election officials should be at the table to write these provisions, because we know what we're talking about, and it's not an ideological project for us," he said. "It's just trying to make our elections work and meet our constituents' needs."

Follow Phillip M. Bailey online @phillipmbailey.

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