The Supreme Court leaves the Voting Rights Act alive — but only barely
“Brnovich upholds both Arizona laws — a provision that disenfranchises voters for casting a ballot in the wrong precinct, and another that prevents most third parties from delivering another voter’s absentee ballot to a polling place. But Alito’s opinion most likely preserves civil rights plaintiffs’ ability to challenge many of the most odious provisions of the voter suppression laws currently being pushed by Republican state lawmakers in other states.”
“the opinion is limited in scope. Brnovich does not apply to all Voting Rights Act cases, or even to all cases involving the law’s “results test” — the specific provision of the Voting Rights Act at issue in the case. Rather, the opinion limits its analysis to “cases involving neutral time, place, and manner rules” governing elections. Thus, while Brnovich does shrink the Voting Rights Act considerably, it primarily does so in this limited context.”
“Alito lays out five factors that govern future “time, place and manner” lawsuits (more on this five-factor test below). One of the practical upshots of these five new factors is that states will largely be free to enact voting rules that were common in 1982, when a key amendment to the Voting Rights Act became law. But novel restrictions on the right to vote are less likely to survive judicial scrutiny.”
…
“The Voting Rights Act of 1965 is the seminal law that broke the back of Jim Crow, along with the previous year’s Civil Rights Act of 1964. It is arguably the most successful civil rights law in American history, and it was this nation’s first serious legislative attempt since Reconstruction to build a pluralistic democracy rooted in the principle of racial equality.”
…
“Under a 1982 amendment to the law, the Voting Rights Act has three prongs, but the Supreme Court has either deactivated or severely weakened two of these prongs. The first is “preclearance,” which required states with a history of racist voting practices to “preclear” any new voting practices with officials in Washington, DC — in order to ensure that those practices did not discriminate on the basis of race.
The Supreme Court gutted preclearance in Shelby County v. Holder (2013).
The second prong of the Voting Rights Act is known as the “intent test,” and it prohibits state voting practices enacted with racist intent. But, in Abbott v. Perez (2018), the Supreme Court held that lawmakers enjoy such a high presumption of racial innocence that it is nearly impossible to prove invidious intent, except in the most egregious cases.
That leaves the third prong of the law, known as the “results test,” which derives from the Voting Rights Act’s language forbidding a state election practice that “results in a denial or abridgement of the right … to vote on account of race or color.””
“Alito’s opinion is vague, and it leaves as many questions open as it answers. When courts are faced with “time, place, and manner” cases under the Voting Rights Act, he writes, “any circumstance that has a logical bearing on whether voting is ‘equally open’ and affords equal ‘opportunity’ may be considered.” Nevertheless, he also provides a non-exhaustive list of five factors that “should be mentioned.””
…
“One impact of this decision, in other words, is that many laws that have a disparate impact on voters of color will be upheld — though it is not yet clear just how severe a law’s impact on minority voters must be before the courts will intervene.”
…
“The upshot of Brnovich, in other words, is that it gives states tremendous power to roll back expansions of voting rights such as early voting and expanded access to absentee ballots, although that power may be limited if such restrictions are imposed in ways that clearly target voters of color.”