Supreme Court Weighs Future Of Voting Rights Act In 2013, the court gutted a key provision of the law, citing that Section 2 of the act still bars discrimination in voting nationwide. Now, Section 2 is in the conservative court's crosshairs.


High Noon For The Future Of The Voting Rights Act At The Supreme Court

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We've been reporting that this is a big week for voting rules in America. Yesterday, lawmakers in the key state of Georgia voted to tighten the requirements for voting. Today, the U.S. Supreme Court hears arguments over just how far states can go. The case involves another key state, Arizona, and the federal Voting Rights Act. NPR legal affairs correspondent Nina Totenberg has the background.

NINA TOTENBERG, BYLINE: Congress passed the Voting Rights Act in 1965, a law that today is widely viewed as the most successful civil rights measure in the nation's history. But in 2013, the Supreme Court gutted a key provision. No longer would state and local governments with a history of racial discrimination in voting have to get clearance from the Justice Department before making changes in voting procedures. Writing for the court, Chief Justice John Roberts essentially said that times had changed and that the law in treating some states differently from others was unconstitutional. Besides, he said, another provision of the law still barred discrimination in voting nationwide. That provision, known as Section 2, would be sufficient to police discriminatory voting procedures, he added. Now, eight years later, it is Section 2 that's in the conservative court's crosshairs. At issue are two Arizona laws. One bars the counting of provisional ballots cast in the wrong precinct. The other and more important provision bars the collection of absentee ballots by anyone other than a family member or caregiver.

TOM PEREZ: I don't think you can understand this case without understanding the geography of Arizona.

TOTENBERG: Former Democratic National Committee Chairman Tom Perez.

PEREZ: The Navajo Nation is 27,000 square miles. That's bigger than West Virginia. It's very remote. There is a lot of abject poverty. Many people don't have a mailbox. They don't have any way to vote. Some people have to travel an hour or two to get a mailbox. And so voting requires the active assistance of friends and neighbors.

TOTENBERG: That active assistance often involves community and party activists collecting absentee ballots from people who don't have cars and delivering them to a post office a long distance away. The Republican-dominated state legislature tried to get rid of the practice by making it a felony. In the Supreme Court, lawyer Michael Carvin defends the law as a legitimate anti-fraud provision.

MICHAEL CARVIN: These are Democratic operatives as part of their get-out-the-vote strategy. The notion that we can have thousands of ballots out there in the hands of Democratic Party operatives and not having one of them tempted to do something wrong strikes me as ridiculous.

TOTENBERG: Indeed, while personal voting fraud is rare, there have been significant cases of fraud in the collection and delivery of ballots. Most recently, a whole congressional election was set aside because of Republican vote harvesting fraud in North Carolina. That said, the 9th Circuit Court of Appeals found no evidence of such fraud in Arizona. And the court struck down the ban on absentee ballot collection. The court said the ban violated Section 2 of the Voting Rights Act, which bars voting laws that, considering the totality of the circumstances, have an adverse impact on minorities, denying them an equal opportunity to vote.

Remember, Section 2 of the Voting Rights Act, for all practical purposes, is the only big enforcement tool left. So the standard that the court sets for proving a violation is enormously important, especially this year, when, in the wake of Trump-perpetrated false claims about fraud, Republican-dominated state legislatures are seeking to make voting more difficult. Myrna Perez, director of the Voting Rights and Elections Program at NYU's Brennan Center for Justice, says there are lots of practical reasons why today's case is important for voting rights enforcement.

MYRNA PEREZ: We have 33 states that have introduced, refiled or carried over more than 165 restrictive bills this year.

TOTENBERG: Remember, too, that Chief Justice Roberts, in striking down the preclearance provision of the law eight years ago, pointed to Section 2 as the remaining enforcement tool. But Roberts has long been disdainful of the need for the law dating back to his youth when, as an aide in the Reagan administration, he unsuccessfully urged the president not to sign the law. Now, decades later, there is a 6-3 conservative majority on the court that's at minimum skeptical of the need for tough voting rights enforcement. The Biden administration has withdrawn the Trump Justice Department brief, which did side with Arizona Republicans in the case. But the Biden Justice Department is not siding with Democratic Party arguments either. Law professor Richard Hasen is a voting rights expert at the University of California, Irvine.

RICHARD HASEN: They're in an effort at damage control. What they're trying to do is prevent the court from making bad law that will apply to more draconian voting restrictions. So this fight is less about whether the Democratic Party loses, but how the Democratic Party loses.

TOTENBERG: In the past, the Supreme Court has established a variety of tests under Section 2 to prevent vote dilution in congressional redistricting. But this is the first time that the court is examining a state law that's been found to disproportionately result in the denial of the right to vote. And there is every possibility that the high court could make it much more difficult or practically impossible to challenge voting rights restrictions in the future.

Nina Totenberg, NPR News, Washington.

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