Has America ‘Changed’ in Racially Discriminatory Voting?

March 1, 2021 by Marcia Coyle

Do U.S. Supreme Court justices ever regret their own decisions? The late Justice Ruth Bader Ginsburg once said a mentor told her: “Don’t look back; don’t worry about things that are done; go on to the next case, and give it your all.”

Before he retired, Justice Anthony Kennedy, author of the controversial campaign finance ruling, Citizens United, conceded too much money was in elections but said that with disclosure laws, voters could do something about it. Although he admitted later to a group of Harvard law students, those laws weren’t working very well.

And what about Chief Justice John Roberts Jr.?

In 2013, the Chief Justice led a 5-4 conservative majority in striking down one of the key tools enacted by Congress to root out racial discrimination in state and local voting practices. Section 4 of the Voting Rights Act of 1965 included a formula that determined which states with histories of voting discrimination required prior approval—by either a federal court or the U.S. Justice Department— before making changes in their election laws. By invalidating the Section 4 formula, the majority also made the Section 5 pre-approval requirement a dead letter.

The Voting Rights Act has been called the crown jewel of the civil rights movement, perhaps the most effective federal law in the fight to end racial discrimination. In 2006, Congress overwhelmingly approved, and President George W. Bush, signed into law a 25-year extension of the act’s enforcement provisions. It was the fourth time the act was extended by Congress which, based on extensive findings and a voluminous record, decided the latest extension was justified because it found “intentional racial discrimination in voting remains so serious and widespread in covered jurisdictions that Section 5 preclearance is still needed.”

But in his 2013 opinion in Shelby County, Ala. v. Holder, Chief Justice Roberts wrote: “Nearly 50 years later, things have changed dramatically.” Black voter turnout and registration in Section 5 covered jurisdictions were approaching parity with whites and minority candidates were achieving success at the polls. And yet, the scope of the Section 4 formula had never been updated and was today “based on decades-old data and eradicated practices,” he wrote.

In her dissent, Justice Ginsburg countered that Congress recognized that second generation barriers to minority voting rights had emerged in jurisdictions covered by Sections 4 and 5. “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet,” she wrote.

Chief Justice Roberts ended his majority opinion, saying, “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”

How much has the country changed? Shortly after the 2013 decision, at least one of the states required to get preapproval for election changes immediately implemented a change that the Justice department had not approved.

The Brennan Center for Justice, a nonpartisan law and policy institute, reported in February that “thus far this year, 33 states have introduced, pre-filed, or carried over 165 bills to restrict voting access—four times the number of similar bills proposed at roughly the same time last year. These proposals primarily seek to: (1) limit mail voting access; (2) impose stricter voter ID requirements; (3) limit pro-voter registration policies, by requiring proof of citizenship, rolling back election day registration and automatic voter registration, and (4) enable more aggressive voter roll purges.”

The Center claims the bills represent a backlash to “baseless and racist” claims of fraud in the 2020 election.

All of which serves as a backdrop to the Supreme Court’s arguments Tuesday in Arizona’s and the Arizona Republican Committee’s defense of two election laws that challengers contend violate Section 2 of the Voting Rights Act.

With the demise of Sections 4 and 5, section 2 is now the dominant tool for fighting race discrimination in voting laws and policies. That section bars state and local vote practices that result in race discrimination—what is known as the results test—or that intentionally discriminate against racial minority voters, the intent test.

The justices will decide whether the results test was violated by Arizona’s out-of-precinct policy, which requires officials to discard provisional ballots cast by voters who voted in the wrong precinct, including parts of the ballot where a voter was qualified to vote. They also will decide if the intent test was violated by the state’s criminalization of the collection of ballots by third parties.

A federal appellate court ruled that the out-of-precinct policy violated the results test because the state’s frequent changing of polling places, among other acts, disproportionately affected minority voters. The ballot collection ban, according to the court, violated both the results and intent tests. The ban has a discriminatory impact on Native American, Latinx, and Black voters, and was enacted with discriminatory intent, it said.

Chief Justice Roberts has a long history with Section 2. As a young lawyer in the Reagan administration in the 1980s, he worked hard to prevent enactment of an “effects” (results) test in Section 2 when key parts of the law were about to expire. Congress did not agree.

Arizona and its supporters argue for more stringent review of challengers’ claims under Section 2, and some contend that Section 2 doesn’t apply at all. The challengers, who include the Democratic National Committee, argue the lower appellate court got the Section 2 analysis exactly right.

The Supreme Court managed to stay above most of the post-2020 election fray, but election-related cases in general are never far from its docket. It may be hard for non-residents of Arizona to care much about that state’s election policies, but the Section 2 framework that the justices decide should apply to claims of racially discriminatory voting practices could have a profound impact for all states and their voters going forward.

Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.