Melissa Harris-Perry: This is The Takeaway. I'm Melissa Harris-Perry in for Tanzina Vega, and this is the late Representative John Lewis of Georgia, speaking in 2018.
John Lewis: "Many people marched and protested for the right to vote. Some gave a little blood, and others lost their lives. Some of you have heard me say that the right to vote is precious, almost sacred. In my heart of hearts, I believe that we should make it simple and convenient for all of our citizens to be part of the democratic process."
Melissa Harris-Perry: On Thursday, the Supreme Court of the United States moved decidedly in the opposite direction of ensuring that it is simple and convenient for all to participate in American elections. When the justices ruled 6-3 in Brnovich v. Democratic National Committee to uphold Arizona's voting restrictions. Writing for the majority, Justice Samuel Alito reasoned, "The mere fact that there is some disparity and impact does not necessarily mean that the system is not equally open or that it does not give everyone an equal opportunity to vote."
Now, in addition to making my head hurt, the decision comes as a blow to voting rights activists and Democrats who hoped the court might prove to be a firewall against the onslaught of restrictions that Republican state lawmakers have introduced, all in an attempt to make it more complicated and less convenient for many to be part of the democratic process.
With me now is my friend, Ari Berman, a senior reporter at Mother Jones covering voting rights, also author of Give Us the Ballot: The Modern Struggle for Voting Rights in America. Ari, welcome to The Takeaway.
Ari Berman: Hey, Melissa, great to talk to you again. Thank you.
Melissa Harris-Perry: I'm so pleased to have you here, although I wish we were reporting on a different decision at this point. I know advocates are disappointed, but were they surprised?
Ari Berman: They were not surprised, but at the same time, they were taken aback by just how severely Samuel Alito gutted what remains of the Voting Rights Act. Remember, the Supreme Court has already gutted the Voting Rights Act. In 2013, John Roberts wrote an opinion that said that those states with the longest histories of discrimination, like Georgia, Texas no longer have to approve their voting changes with the federal government. That took away the most important part of the Voting Rights Act.
Then Robert said, there's still this other part of the Voting Rights Act, Section 2 of the Voting Rights Act, that applies nationwide and is still in effect. What did the court do this week? They gutted the remaining section of the Voting Rights Act, and made it very, very difficult for minority voters to be able to challenge discriminatory voting laws in the future. So it's really been a one-two punch in terms of eviscerating the country's most important civil rights law.
Melissa Harris-Perry: Let's talk about that disparate impact language, because I feel like we just had a conversation about disparate impact in the courts as recently as 2015, with the Texas Department of Housing versus the Inclusive Communities Project. The court at that point upheld the idea that disparate impact is a relevant way for understanding when we've got racial discrimination. Am I understanding from Alito's decision that that is now gone?
Ari Berman: Yes. He's basically saying the disparate impact standard as it applies to things like the Fair Housing Act doesn't apply to the Voting Rights Act, and that the interplay of current and past discrimination is not enough to strike down restrictions on voting, that it has to go beyond what he calls the usual burdens of voting, that it can't be a mere inconvenience making it harder to vote.
Essentially, what he's saying is there has to be flagrant, shocking, intentional discrimination or else we're not going to strike down these kind of voting laws, and what Alito is doing is he's giving a tremendous amount of deference to states that are making it harder to vote. Basically saying, they can make it harder to vote if they're concerned about voter fraud, even if there's no evidence of voter fraud, while he's significantly raising the barriers that minority voters, communities of color, have to prove to be able to show that the voting change is discriminatory.
Essentially, he's rewriting the Voting Rights Act, because in 1982, the Voting Rights Act was extended, and this is when they really wrote Section 2 of the Voting Rights Act into law. They said that it's based on what they call the totality of circumstances. So you look at both past discrimination and current discrimination to figure out if a voting change is discriminatory. Now, they've added all of these new tests that aren't actually in the Congressional Record. For a court that claims to be opposed to judicial activism, they've basically unilaterally rewritten the Voting Rights Act essentially out of thin air.
Melissa Harris-Perry: I have to say I had a moment of optimism around voting rights in the context of the 2020 election when the pandemic forced us to make it actually easier to access the ballot. You saw this surge and turnout not just among Democrats, but Democrats and Republicans, and I thought, "Huh, maybe this can once again be a bipartisan effort to say, actually, we want to get everybody out to the polls." Why are we still seeing Republican state lawmakers wanting to restrict access?
Ari Berman: I was hoping for the same thing because we saw the highest turnout in 120 years in 2020, and I think one of the reasons we saw the highest turnout is because people had more options to vote than ever before. Mail voting was expanded in a lot of states. Early voting was expanded in a lot of states, and, of course, there was still a traditional in-person voting on Election Day, so people had three options to vote in virtually every state in the country, which made it very convenient to be able to vote even in a pandemic. I was hoping that would become the new normal.
Republicans would say, "Yes, we've narrowly lost the presidency, but Donald Trump got more votes than any other Republican presidential candidate. We narrowly lost the Senate, but we're in good position to take it back in 2022. We have control of all of these key states. We can win in a high turnout election." Instead, what they've tried to do is institutionalize the big lie pushed by Donald Trump, and after overturning an election, they are now trying to change the laws to try to essentially achieve the same outcome, "That it's too difficult to overturn election after the fact, so let's just change the rules during the normal legislative process."
That's the kind of thing the Supreme Court has basically said we're okay with. "We're not going to let Donald Trump steal the election, but if Republicans want to change the rules to benefit their party, we're okay with that kind of thing."
Melissa Harris-Perry: Let's talk about these Arizona rules specifically. In other words, two big ones. Can you walk us through it a bit?
Ari Berman: Yes. There were two laws that were challenged in Arizona. One was a restriction on ballot collection, basically saying that nobody, except for a family member or caregiver, can return someone's mail ballot for them, and then there was also a restriction on out-of-precinct voting that if you show up at the wrong precinct, your vote is thrown out. These disproportionately affects communities of color, in particular, Black, Latino, Native American voters. They're more likely to live in areas that don't have access to polling places or access to mail services, and so they need more help when it comes to voting.
The big significance of the case wasn't the Arizona restrictions. It's what it means for all of the states that are passing new restrictions on voting now, because, remember, Democrats and civil rights groups have litigated against Georgia, Arizona, Florida, et cetera, et cetera, under Section 2 of the Voting Rights Act. Basically, what Samuel Alito was saying is it's going to be extremely difficult for you guys to win these cases, and it basically sends a message to Republican lawmakers all across the country. They can do virtually anything they want to make it harder to vote, as long as it's not incredibly flagrant and obvious to everybody, and the court is not going to strike it down.
Melissa Harris-Perry: Let's walk through the Section 2 one more time just for folks who may not have been following all the aspects of the Voting Rights Act. In the Shelby v. Holder, in that case, it made it so much more expensive, basically, in terms of time, energy, effort, actual resources, because instead of preclearance, you had to actually bring suit. What you're suggesting now, I just want to be sure I've got this right, is that even if you go through all that time, energy, expense, get the litigants, bring the suit, what would normally or would have previously been understood as a rationale for turning back these voting rights restrictions, that basis no longer stands?
Ari Berman: Yes. We have to see how this is going to play out in future cases, but basically, the way it worked now is, yes, you had to go through very lengthy, costly after-the-fact litigation to challenge voting restrictions under Section 2 of the Voting Rights Act. That said, civil rights groups did have some success doing that. They were able to strike down discriminatory voting laws in Texas, in North Carolina, in some other places, using these remaining provisions of the Voting Rights Act.
Now, what Samuel Alito is saying is that he's going to give great deference to states that are passing restrictions, and he's going to make it much harder for communities of color to challenge these kind of restrictions. Not impossible, but he's added so many new barriers to being able to win these cases that it's going to be functionally very difficult to win the lawsuits that have been filed recently in places like Georgia and Florida and Arizona and other states.
Melissa Harris-Perry: With the lawsuits are a bit of a mess for a while, what are the other options for protecting voting rights? We do have some other branches of government. Is there something that the federal government can do through Congress or something the state legislators might be able to do?
Ari Berman: I think this decision is just going to put more pressure on Congressional Democrats to pass federal legislation protecting the right to vote, namely, the For the People Act, and the John Lewis Voting Rights Advancement Act. I believe we're in a situation akin to 1965, where only the Congress can step in to stop the problem of voter suppression. Back then, there was no solution to the problem of voter suppression in places like Georgia and Alabama, other than the Voting Rights Act of 1965.
It's becoming increasingly clear that the only solution to the problem of voter suppression today is congressional action. Because so many of the states are controlled by Republicans that are making it harder to vote, the courts have already signaled, they are going to uphold these laws. That was obvious even before this Arizona decision, quite frankly. So Democrats have to use the power they have to protect voting rights in the same way that Republicans are using the power that they have to make it harder to vote.
Melissa Harris-Perry: Can you help us to understand the difference between the For the People Act and the John Lewis Act?
Ari Berman: Yes. The For the People Act would institute democracy reforms that apply equally to all 50 states for federal elections. So it'd put in place policies like automatic voter registration, and two weeks of early voting, and a ban on partisan gerrymandering. That would apply nationwide. More recently, Republicans blocked the vote in the Senate, even on debating it. It hasn't even actually had a real debate in the Senate.
The John Lewis Voting Rights Act would restore the provision that states with a history of discrimination have to once again approve their voting changes with the federal government, and they would update and modernize that formula. I suspect they are now rewriting it to also strengthen Section 2 of the Voting Rights Act.
It's important to remember, Congress has the power here to set rules for federal elections and to write civil rights laws. They can overrule the court. There was a case in 1980 where the Supreme Court severely weakened the Voting Rights Act. There were people, like John Roberts, who was a young lawyer in the Reagan Justice Department, who wanted to keep that weak Supreme Court decision. The Congress overruled the Court in 1982, and strengthened the Voting Rights Act and renewed it for another 25 years.
Congress has the ultimate authority here. They just have to use that authority. Democrats have been unwilling to do it because they won't eliminate the filibuster to pass this legislation with 51 votes. As long as you need 60 votes, nothing's going to pass, but Democrats do have the power to pass these votes, these legislation with 51 votes. They just haven't used that authority yet.
Melissa Harris-Perry: Yes. Oh, that old filibuster. Ari Berman is a senior reporter at Mother Jones covering voting rights. If you care about voting rights, follow Ari Berman. Ari, thank you for taking the time.
Ari Berman: Thanks, so much Melissa.
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