MESSAGE
| DATE | 2021-03-01 |
| FROM | Ruben Safir
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| SUBJECT | Subject: [Hangout - NYLXS] voting rights
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wsj.com
Opinion | Voting Rights at the Supreme Court
The Editorial Board
The U.S. Supreme Court building in Washington.
Photo: jonathan ernst/Reuters
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Election laws have become a dangerous political flashpoint, as Americans
recently learned the hard way. On Tuesday the Supreme Court will hear a
potentially landmark case (Brnovich v. DNC) that offers an opportunity
to restore the Voting Rights Act to its original purpose.
At issue is Arizona’s requirement that voters cast ballots on election
day in their assigned precinct and its ban on ballot harvesting by
outside groups. A majority of states require in-precinct voting, and 20
or so limit ballot harvesting, which allows third parties to collect
ballots in bunches. Both rules are intended to bolster ballot integrity.
Democrats say this violates Section 2 of the Voting Rights Act, which
prohibits states from adopting voting qualifications, standards, or
practices that result in “denial or abridgement” of the right to vote
“on account of race or color.” But they provide no evidence that
Arizona’s rules limit minorities’ ballot access.
Congress passed the Voting Rights Act of 1965 to stop states from
disenfranchising blacks with underhanded methods like poll taxes and
literacy tests. But Democrats now argue that any state regulation that
makes it a little harder for anyone to vote violates the law—even if it
applies equally to minorities and whites.
Importantly, the Voting Rights Act (VRA) puts the burden on plaintiffs
to show that minorities, based on the “totality of circumstances,” have
“less opportunity” than others “to participate in the political process
and to elect representatives of their choice.”
The High Court hasn’t provided a clear standard for lower courts to
interpret Section 2. And many lower court judges have blocked voter ID
requirements, early-voting curbs and same-day registration restrictions,
among other rules, based on statistics that purportedly show that
minorities are disparately impacted.
The Sixth Circuit Court of Appeals in 2014 enjoined Ohio’s reduction of
early voting from five weeks to four. Ohio settled the case with the
NAACP by agreeing to start early voting 29 days before Election Day. But
the Ohio Democratic Party sued and said 29 days wasn’t enough.
In the current Arizona case, a federal judge ruled there is no evidence
that the state’s in-precinct voting rule and ballot harvesting ban
disproportionately burdens or discriminates against minorities. A Ninth
Circuit Court of Appeals panel affirmed the ruling but was overruled en
banc. Backers of Arizona’s ballot harvesting ban “had a sincere, though
mistaken, non-race-based belief that there had been fraud in third-party
ballot collection, and that the problem needed to be addressed,” the
Ninth Circuit’s liberal judges held.
There’s no guiding legal principle to the Ninth Circuit’s ruling, and
any law that bolsters election integrity may violate the VRA if judges
say so. Even the Biden Justice Department told the High Court last month
that it doesn’t “disagree” with Arizona’s argument that its law is legal
under Section 2’s “results test.”
The Court is highly likely to agree, and the shrewd liberal Justice
Elena Kagan will no doubt tell Chief Justice John Roberts he can get a
9-0 ruling by holding that the Ninth Circuit committed a clear error in
overturning the lower court findings of fact. But that would be a lost
opportunity.
Arizona’s election laws are clearly not a violation of Section 2 as a
matter of law, and the Court needs to protect state procedures that
protect ballot integrity from electioneering lawsuits. But it would be
even better if the Court goes further and clearly defines what the
language of Section 2 means.
Courts have defined this so broadly that it has invited political
mischief and judicial activism on an ad hoc basis. As the Chief Justice
wrote in a memo when he served in the Reagan Justice Department,
“Violations of Section 2 should not be made too easy to prove, since
they provide a basis for the most intrusive interference imaginable by
federal courts into state and local processes.”
That’s exactly what Americans saw in 2020, with enormous damage to
public confidence in the election results. With so much political
contention over voting access and election laws at the current moment,
the Court needs to set proper parameters around Section 2 to distinguish
between real and invented legal violations.
WSJ Opinion: Hits and Misses of the Week
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