A police barricade outside the US Supreme Court in Washington, DC on Monday, December 7, 2020.

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The Voting Rights Act was introduced by Congress in 1965 to protect the right to vote for blacks and other minority groups that had been systematically excluded from the US political system for centuries.

On Tuesday, when Republican lawmakers press for bills across the country that could make it difficult for minority groups to vote, the Supreme Court will hear arguments on a major case over landmark 1960s legislation that would give the new bills a better chance could give against legal challenges.

In Brnovich v Democratic National Committee, No. 19-1257, the judges will hear a 2016 case over voting rules in Arizona that raises questions at the center of the current debate that has gripped the country following the presidential contest between President Joe Biden and former President Donald Trump.

The court will examine the expansion of Section 2 of the Voting Rights Act, which prohibits states from enacting laws that restrict citizens’ ability to vote based on race. The law states that a state may violate Section 2 if elections are not “equally open” to minority groups and the rest of the electorate because of the “set of circumstances”.

Arizona Republican Attorney General Mark Brnovich and conservative organizations are urging the court to use the case to curtail Section 2 protection. On the other hand, the DNC and civil rights groups are urging judges to read the law further.

The case takes place amid a deluge of electoral law at the state level. Republicans, angry at Trump’s loss in November and fueled by his false claims of widespread electoral fraud, have introduced dozens of state house bills that would tighten voting restrictions.

To date, there have been more than 250 bills in 2021 that contained provisions restricting access to voting rights in 43 states, according to a tracker maintained by the NYU Law’s Brennan Center for Justice.

Voting outside the constituency and “ballot harvest”

The two contested measures in Arizona are similar to legislation that already exists in dozens of states. The first is a policy that prohibits voters from voting outside of their assigned districts on election day. The second is a law that restricts third party ballot collection, which Republicans mockingly refer to as the ballot harvest.

The National Democratic Committee challenged both measures in 2016, claiming they disproportionately affected Hispanics, Indians and blacks. In addition, the DNC said the ballot harvest measure was specifically designed to suppress the votes of Hispanic and Native American voters.

The DNC lost in a district court but ultimately succeeded in the 9th U.S. appeals court.

The appeals court ruled that both Arizona measures failed the “score test” – meaning the laws resulted in minority access to the polls being suppressed. The ballot collection provision was also found to fail the “intent test”, meaning that it was issued with the intent to discriminate. Both tests came from a 1986 Supreme Court case known as Thornburg v Gingles.

The 9th Circle cited figures showing that minority voters were twice as likely to cast their votes because of policies against counting ballots cast in the wrong district.

It also said minority voters were particularly reliant on third party ballot collection and that “there has been no evidence of fraud in the long history of third party voting in Arizona.”

The appeals court found that Republican lawmakers who voted to ban voting were motivated by false allegations of electoral fraud and a “racist” video by Maricopa County Republican chairman AJ LaFaro showing an apparently Hispanic man A narrator calls the person a “thug” and speculates that he may be an “illegal alien”.

Threat to key provisions

Both sides of the case recognize that doing so could have ramifications beyond Arizona.

In an April filing with the Supreme Court, Brnovich urged judges to review the case, warning that the 9th Circle’s reasoning would threaten not only the laws in question but “a host of other reasonable electoral laws” as well.

In a statement released this week, Brnovich said the case was “about protecting the franchise and not disenfranchising anyone”.

“I think part of the lesson from 2020 was that if people don’t believe that elections have integrity or that their vote is protected, it will undermine public confidence in the system,” he said.

Civil rights groups are alarmed that the Supreme Court, with six appointed Republicans, may be ready not only to crack down on the DNC but to take a sweeping decision that limits the scope of Section 2 of the Suffrage Act.

“In the face of this wave of restrictive legislation, we certainly fear the possibility of new discriminatory measures being put on the books and we must rely on the proxy law,” said Sean Morales-Doyle, associate director of voting and election programs at the Brennan Center.

“Any restriction to Section 2 would make it really harder to tackle discriminatory measures,” he said.

Section 2 has gained in importance in recent years due to the weakening of Section 5 of the Voting Rights Act by the court in 2013. In Section 5, some states and places with a history of discrimination had to obtain federal approval before introducing new electoral laws. Section 2 only allows contesting laws once they are in force.

In Shelby County v Holder, the Supreme Court ruled 5: 4 to invalidate the formula that determined which states and counties had to obtain federal approval before new electoral laws were passed. Since then, Congress has not set a new formula, which means that the obligation to clarify has been practically suspended.

Kathleen Hartnett, an attorney for NAACP and the Civil Rights Lawyers’ Committee, wrote in a letter from a court friend that Section 2 has become “even more indispensable” following the Shelby County court ruling.

The late Judge Ruth Bader Ginsburg warned in a dissent in Shelby County that Section 2 protections were not as strong as Section 5’s preliminary investigation rules, which the court declared invalid.

“Litigation does not arise until the illegal voting system has already been put in place and individuals have been appropriately elected, thereby gaining the benefits of tenure,” wrote Ginsburg.

She added that litigation puts a huge financial burden on minority communities seeking to defend their rights and that it could take years – and several election cycles – for the relevant evidence to develop.

The Arizona case provides an example of the strength of Section 5. While the preliminary investigation was in place, Arizona attempted to approve the ban on third party ballot collection in 2011. After the Department of Justice requested more data to determine if the law was discriminatory, Arizona withdrew its application, the DNC notes in one of its filings.

A wide range of possible outcomes

Before the arguments, it is not clear how the judges will ultimately rule the case. It would be possible for the court to rule in Arizona’s favor and comply with its electoral laws without re-examining the strength of Section 2.

This approach is exactly what the Justice Department took under Biden when it reversed the position of the Department under Trump, which Brnovich strongly supported.

In a letter last month, Assistant Attorney General Edwin Kneedler wrote that the department had been conducting a review of its previous stance.

Kneedler wrote that the department continued to believe that the contested measures did not violate the voting rights law. However, he added that the DOJ did not agree with Brnovich’s “Framework for the Application of Section 2 in Refusal to Vote Cases”.

Morales-Doyle, of the Brennan Center, said the main concern of the constituencies is to get the court to approve Brnovich and other Conservatives filing pleadings asking the court to “limit how much courts take into account the reality of how the race works can be “in the world” when reviewing Section 2 cases.

Race, he said, “goes through all of these other aspects of life, so it’s important that courts can take this into account.”

A decision in this case is expected by the end of June.

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