Tanzina Vega: During November's elections, many states expanded access to ballots because of the pandemic. Months later, we're now seeing over 100 new bills up for consideration across the country as part of a push to roll back that expansion. Today the Supreme Court will be hearing a case out of Arizona on one of the most powerful sections of the Voting Rights Act. If the outcome in this case limits the scope of the Voting Rights Act, that could make it harder to challenge some of the voter suppression laws in the pipeline. Here to break it all down is Grace Panetta, senior politics reporter covering elections and voting for Insider. Grace, welcome back to the takeaway.
Grace Panetta: Thank you so much for having me
Tanzina: Also with us is Myrna Pérez, director of the Brennan Center's Voting Rights and Elections Program. Myrna, thanks for joining us.
Myrna Pérez: Thank you so much. I'm excited.
Tanzina: Myrna, we should mention that the Brennan Center submitted a brief to the Supreme Court in the Arizona Voting Rights Case, arguing that the court should uphold the Voting Rights Act. Before we get into the details of this case, can you explain what the Voting Rights Act does?
Myrna: Sure. The Voting Rights Act has been the crown jewel of the American civil rights movement. It sets forth protections for voters, that way they know when they step in the ballot box, it will be free from racial discrimination in voting. For more than 50 years, it has provided some of the strongest protections against racial discrimination. In 2013, the Supreme Court weakened the Voting Rights Act by mothballing a particular provision that was really important to protecting voting rights.
Today the Supreme Court will be hearing another matter in which the petitioners and certain amici have invited and in fact encouraged the Supreme Court to further weaken the Voting Rights Act. We are hopeful that the Supreme Court will not do that. It is coming at a time where we need protections against discrimination more than ever, and it's coming at a time where some people feel emboldened about restricting access to the ballot.
Tanzina: Grace, that case before the Supreme Court today, can you tell us a little bit about what it's about?
Grace: Absolutely. This is a couple of cases that are being consolidated for an hour of argument and they're coming out of Arizona. In 2016, the Democratic National Committee, the DNC, filed suits against two Arizona voting policies passed in the legislature. The first is a policy that stipulates that any provisional ballots that voters cast in the wrong precinct, a precinct they're not assigned to, that is not their own, will be rejected. Even votes for statewide races at the top of the ticket that any voter in the state is eligible for.
The second law that is being challenged here, is a law banning third party ballot collection. Ballot collection drives are a really key tool in Arizona because so much of the state's electorate votes by mail in a given election. The DNC challenged these laws under Section 2 of the Voting Rights Act, contending that they resulted in the denial or abridgment of the right to vote for voters of color under Section 2 of the Voting Rights Act. They first lost in the district court and in a panel of the Ninth Circuit, but the en banc Ninth Circuit reversed, finding that both the laws did in fact violate Section 2, and that the ballot collection policy was in fact created with discriminatory intent, and now Arizona is appealing that to the Supreme court.
Tanzina: Can you explain what Section 2 of the Voting Rights Act is?
Grace: Absolutely. Section 2 prohibits any denial or abridgment or discrimination of voting, specifically for racial minorities and language minorities in the United States. The way that Congress has construed this law is that it not only covers cases of intentional discrimination, but it should also cover cases
of laws or policies that result in a discriminatory intent. Section 2 has been used by both the department of justice and other plaintiffs to challenge both discriminatory voting schemes, so in the redistricting context with schemes that dilute the weights of minority voters and also against certain policies.
Tanzina: Section 2 is a crucial part of the Voting Rights Act, especially since the legislation was weakened in 2013, as you mentioned, Myrna, after a Supreme court ruling. Explain again what happened then and why?
Myrna: Sure. In 2013, the Supreme Court considered a crucial part of the Voting Rights Act called Section 5 or sometimes known as pre-clearance. Pre-clearance is just a fancy way for saying that before an election change is about to be implemented, it needs to be certified in advance that it's not going to make minority voters worse off, or that it wasn't enacted with the hopes of making minority voters worse off. Section 5 applied in jurisdictions that had histories of racial discrimination in voting. The Supreme Court decided in 2013 that Congress had not looked at recent enough information to decide which states and localities had to comply with the Section 5 pre-clearance requirements. While we have pre-clearance or Section 5 on the books, we don't have it operating anywhere. It's like imagining that you have a really strong, beautiful, shiny powerful car, but it has to sit on a lawn.
Section 2, as Grace mentioned, has been doing a lot of the work that Section 5 used to. Litigators like myself have been using Section 2 across the country to try and stop restrictive and discriminatory policies because we don't have the tool of Section 5 anymore. The concern today is that the Supreme Court is going to take up the invitation that the defendants and that the amici have put in front of them [unintelligible 00:05:50] to further weaken the Voting Rights Act by weakening or limiting Section 2.
I do think it's important to note that this could be a very straightforward application of law to facts. The Supreme Court could decide that it's merely going to examine whether or not the facts on the ground in Arizona violate Section 2 of the Voting Rights Act. What is particularly dangerous is the very naked assault on this bedrock protection for the right to vote. They are being very loud and very clear that they want the court to weaken the protections. Even if the court declines to do it, the fact that we have really powerful forces in this country trying to make it easier to get away with discrimination is something that we should all be concerned about, especially when we see [unintelligible 00:06:42] anti voter activity in the states.
Tanzina: Grace, talk to us about the broader context of what is happening in many states around the country in the aftermath of the 2020 election and how that relates to this case.
Grace: Absolutely. As Brennan Center research has found, they've put out a really excellent guide laying out the landscape on voting laws and state legislatures around the country. There are now over 160 bills seeking to restrict voting that have been filed in state legislatures around the country in the wake of the 2020 election, which is a significant increase over the number that had been filed around the same time last year. While not all of them are going to pass or even make it through committee, it signals where certain legislators priorities are.
In many states, including Arizona, which legislators have filed many, many bills seeking to restrict voting, this really has significant implications for how these laws could be challenged, because as Myrna mentioned, Section 2 has become one of the main tools of litigation that litigators have used to challenge laws that are discriminatory. If the court rules, for example, that Section 2 should only be applied to narrow circumstances of vote dilution schemes, or if they say that a narrower test should be used, a higher threshold, if they rule that litigants have to approve discriminatory intent or somehow make it harder to bring these claims, that could make it much more difficult to challenge some of these laws that have a disparate impact on voters of color.
Tanzina: Myrna, one part of today's case is about requiring election officials to discard ballots cast at the wrong precinct. Why are communities of color especially impacted by this?
Myrna: To be very clear, it's not a question as to whether or not these kinds of policies, it's whether or not this policy in Arizona is discriminatory. The facts presented that the Ninth Circuit found very persuasive, were that Arizona had a history of moving around precincts especially in communities of color, and they did not provide appropriate voter education, and they did not provide appropriate training to poll workers as to what people should do. You would have limited information voters going to a polling place that wasn't in fact theirs, and then they'd cast a ballot and the entirety of the ballot would be rejected.
That's why what the defendants and what the amici are asking the Supreme Court to do is so incredibly outrageous. This is not a nationwide referendum on whether or not people can discard ballots if they cast them in the wrong precinct. It is whether or not this is a problem in Arizona under Section 2 of the Voting Rights Act and we should be appalled that there are some people asking the court to consider the constitutionality and consider the strength of Section 2 of the Voting Rights Act, when we're really just looking at what is on the ground and what is happening in Arizona.
Tanzina: Grace, some are saying that this is the most important election case in almost a decade. What makes it so crucial?
Grace: What makes it so crucial is it strikes at one of the last remaining really strong parts of federal election law that protects minority voters. As Myrna mentioned earlier, now with the preclearance under Section 5 of the Voting Rights Act gone, this sort of crown jewel of the civil rights movement, it's power has really been diminished and taken away specifically by the Supreme Court. The other reason that makes it so important is that in the past year, especially with all the election cases coming out of the COVID-19 pandemic, the Supreme Court hasn't been the friendliest arena for voting rights advocates.
With a case of this magnitude and this significance, it could not only have an impact on how these cases can be litigated nationwide and make it more difficult to challenge discriminatory laws, but it could also signal how the court is going to continue to handle these issues. It could make litigants in this case think differently about what cases they want to put in that pipeline up to the court.
Tanzina: Grace Panetta is a senior politics reporter covering elections and voting for Insider, and Myrna Pérez is the director of the Brennan Center's Voting Rights and Elections Program. Thank you both so much for being here.
Myrna: Thank you for having us.
Grace: Thank you.
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