The Supreme Court got it right in Section 2
July 7, 2021
Hans von Spakovsky is a senior legal researcher and manager of the Legacy Foundation’s Electoral Law Reform Initiative. He is a former career adviser to the Assistant Attorney General for Civil Rights Affairs of the U.S. Department of Justice.
The Supreme Court made a 6-3 decision in Brnovich v. Democratic National Committee Not only is the correct result under the applicable law (Section 2 of the Voting Rights Act), it is also a common sense decision that maintains the traditional state voting rules that Section 2 never intended to achieve. The court supported Arizona’s ban on ballot sales (or euphemistically called “reaping ballots”) and the state’s requirement for individual voting in its designated districts to count votes.
The importance of this case in the field of voting law-and in the fierce and controversial battles over the implementation of electoral reform laws in the states-cannot be overemphasized.Since the groundbreaking case Thornburg v Gingles In 1986, the court established a test ( Ginger After Congress revised Article 2 in 1982, in order to determine the factors that violated Article 2), all cases submitted to the courts involved redistricting and voting dilution claims.
Brnovic This is the first case. As Justice Samuel Alito wrote in his majority opinion, the case considered how to apply the second challenge to state laws governing the time, place, or manner of elections, namely “How to collect and count votes.” Such cases have “exploded” in lower federal courts, but no case has reached the Supreme Court before that.
Those who are not satisfied Shelby County The 2013 decision and the end of the Article 5 pre-trial proceedings have been trying to persuade the court to reduce the Article 2 test to the more relaxed “different impact” standard in Article 5. Written by Justice Elena Kagan and joined by Justices Stephen Breyer and Sonia Sotomayor, simple different impact criteria can be used to determine Article 2 violations. This is not something considered by the text of the regulations or its legislative history.It will create a standard that makes it difficult for a country once Make any changes to its election law.
The majority opinion rejected this proposed conversion to Section 2, although Alito said that the court did not “declare[ing] The test for all VRA §2 claims that applies to “time, place, or method of voting” is in the process of identifying “certain road signs” that lead to court rulings. For practicing election lawyers, this is actually the same as the test.
One of the biggest problems facing the challenger in this case is the second line that Alito believes: “Arizona law usually makes voting very easy.” When a state has such an open and expanded voting process like Arizona, It is difficult to make a discrimination statement stand. The state provides its residents with the ability to “vote by mail or in person within nearly one month before the election day.”
This led to the court’s application of the text of Article 2(b), that is, only when the election process does not “Equally open “Participation” by minoritiesBecause its members have fewer opportunitiesParticipation than other voters (emphasis added by the court). Therefore, the “touchstone” of Section 2 is to require voting to be “equally open”, and the DNC cannot prove that voting is not equally open to all residents of Arizona, regardless of their race.
in Ginger The “integrity of the case” factor and the applicable criteria in this case, the court stated that “several important circumstances should be mentioned.” first of all,”size The burden imposed by the challenged rule is highly relevant” (emphasis added). Each voting rule imposes some burden on voters because “voting takes time” and “some travel, even if it’s just to a nearby mailbox”. A voting system that is “equal and open” and provides everyone with “equal opportunities” to vote “must tolerate the’normal voting burden'” and “mere inconvenience is not enough to prove a violation of §2”. This factor alone is sufficient to eliminate The voting law has many challenges on issues such as drop boxes and absentee ballot rules.
Second, “the extent to which the voting rules deviated from standard practice when §2 was revised in 1982 was a highly relevant decision.” Again, this factor should make many of today’s challenges extremely difficult to maintain, because almost all rules governing the electoral process were in 1982. Both were much stricter. At that time, no state had early voting, drop-in boxes, or online voter registration. As the court said, the state “only allowed absentee ballots in narrow and strictly defined categories of voters.”
Third, “the magnitude of any difference in the impact of rules on members of different races or ethnic groups is also an important factor to consider.” However, all voting rules will have some “predictable turnout differences”, no matter how neutral they are. “Simple fact [that] Some differences in impact do not necessarily mean that the system is not equally open. The most important thing is that “very small differences should not be artificially enlarged. In view of almost all the regulations concerning registration and voting, the differences between different groups of voters are very small, which also dealt a heavy blow to the challengers.
Fourth, the court “must consider the opportunities provided by the entire voting system of a country when assessing the burden imposed by the challenged clause.” This means that “if a state offers multiple ways to vote, it is impossible to assess any burden on voters who choose one of the available options without considering other available methods.” Because states now provide individuals with many different ways to vote , From early voting to absentee voting, to actually voting in the old-fashioned way—on election day—challenging a specific change in one of these methods will be difficult to maintain.
Finally, “the power of the national interest served by the questioned voting rules is also an important factor that must be considered.” Undoubtedly to the frustration of opponents of electoral reform, the court believes that “a strong and completely legitimate national interest is to prevent fraud.” , Because it can change evenly matched election results, dilute the votes of qualified citizens, and “undermine the public’s confidence in the fairness of the election and the legitimacy of the announced results.” Most importantly, states do not have to show evidence. Past Fraud to justify legislative actions aimed at preventing future Crime of fraud.
As practitioners in this field know, Ginger The case outlines other factors to be considered in the voting dilution analysis in Section 2. The court stated that in cases such as these, these other factors “have little effect” Brnovic, In fact, some “obviously do not apply to cases involving the questioning of the time, place, or method of facial neutral voting rules.”
Most people are critical of the different impact analyses that dissidents say should be applied to these types of Section 2 cases. Alito said that the dissidents “struggled to conceal their goals,” which was to “reverse as far as possible the compromise reached between the House of Representatives and the Senate when Article 2 was amended in 1982.” The compromise added the language of Article 2(b) to make it clear Avoid interpreting and applying this clause as only requiring the display of different effects or effects to prove violations.
Most people are correct when it comes to how to apply Section 2 in these types of cases. It will still be an effective tool to prevent actual racial discrimination in the voting environment, but it will not be what the critics of the decision want-a partisan tool that can be used to prevent public policy decisions that they disagree with in the way of personal registration. Vote in a specific state.