One interesting fact is that Supreme Court justices appointed by Democratic
party administrations have generally followed the Democratic Party positions
on cases that they heard, while this is not necessarily true of those
appointed by Republican administrations. This can also go the other way, as
a justice appointed by FDR who supposedly had a progressive perspective
turned out to decide in a very conservative manner.
Andy
----- Original Message -----
From: "Miriam Vieni" <miriamvieni@xxxxxxxxxxxxx>
To: <blind-democracy@xxxxxxxxxxxxx>
Sent: Monday, October 05, 2020 6:41 AM
Subject: [blind-democracy] The Supreme Court Will Hear a Case That Could
Destroy What Remains of the Voting Rights Act
The Supreme Court Will Hear a Case That Could Destroy What Remains of the
Voting Rights Act
By Ian Millhiser, Vox
04 October 20
And Republicans are poised to gain a 6-3 majority on the Supreme Court.
The Supreme Court announced on Friday that it will hear two consolidated
cases that could eviscerate the right to be free from racial discrimination
in voting. And the Court agreed to hear these cases just weeks before the
Senate is likely to confirm Judge Amy Coney Barrett to the late Justice Ruth
Bader Ginsburg's seat on the Supreme Court, giving a Republican Party that
is often hostile to voting rights a 6-3 majority on the nation's highest
court.
It's difficult to exaggerate the stakes in Brnovich v. Democratic National
Committee and Arizona Republican Party v. Democratic National Committee.
The cases involve two Arizona laws restricting the right to vote. One law
requires ballots cast in the wrong location to be tossed out, while the
other prevents individuals from delivering another person's absentee ballot
to the elections office. But as these cases arise under the Voting Rights
Act - a seminal law preventing racist voting laws, that the Supreme Court
has already weakened considerably - they provide a conservative-majority
Supreme Court the opportunity to dismantle what's left of the Voting Rights
Act.
Early Friday morning, the White House revealed that President Donald Trump
tested positive for Covid-19. But that news will, at most, impact just one
presidential election. The Court's decision in the Democratic National
Committee cases, by contrast, could fundamentally reshape all elections
moving forward. It could allow racist voter discrimination to run rampant
throughout American democracy. And it potentially endangers the ability of
the Democratic Party, with its multiracial coalition, to compete in all
future elections, at least at the national level.
We cannot know yet what the Supreme Court will do in this case. Perhaps two
Republican justices will get cold feet and agree to save the Voting Rights
Act. Or perhaps Democrats will win a landslide victory in the upcoming
election and pack the Supreme Court with additional justices - stripping the
GOP of its Supreme Court majority in the process.
Barring such events, however, American democracy is in terrible danger. The
Supreme Court's decision to hear the Democratic National Committee cases
could threaten the fairness of American elections for years to come.
The two cases concern Arizona laws that make it harder to vote
The specific issue in the Democratic National Committee cases concerns two
Arizona laws that require certain ballots to be discarded. One law requires
voting officials to discard in their entirety ballots cast by voters who
vote in the wrong precinct (rather than simply not counting votes for local
candidates who the voter should not have been able to vote for).
The other law prohibits "ballot collection" (or "ballot harvesting") where a
voter gives their absentee ballot to a third party, who delivers that ballot
to the election office. (Arizona is one of many states that impose at least
some restrictions on ballot collection.)
Both of these laws disproportionately disenfranchise voters of color. As a
federal appeals court explained in an opinion striking down the two laws,
"uncontested evidence in the district court established that minority voters
in Arizona cast [out of precinct] ballots at twice the rate of white
voters." And Hispanic and Native American voters are especially likely to
rely on a third party to ensure that their ballot is cast.
One reason for this disparity is that some parts of the state require voters
to cast their ballot in counterintuitive locations. Some Maricopa County
voters, for example, were required to "travel 15 minutes by car (according
to [G]oogle maps) to vote" in their assigned polling location, "passing four
other polling places along the way," according to an expert witness.
In addition, according to the appeals court, many Arizona voters of color
lack easy access to the mail and are unable to easily travel on their own to
cast a ballot. As the appeals court explained, "in urban areas of heavily
Hispanic counties, many apartment buildings lack outgoing mail services,"
and only 18 percent of Native American registered voters have home mail
service.
Meanwhile, Black, Native, and Hispanic voters are "significantly less likely
than non-minorities to own a vehicle" and more likely to have "inflexible
work schedules." Thus, their ability to vote might depend on their ability
to give their ballot to a friend or an activist who will take that ballot to
the polls for them.
The legal rules implementing the Voting Rights Act are complicated. And the
specific legal rules governing these cases are impossible to summarize in a
concise way. Courts have to consider myriad factors, including "the extent
of any history of official discrimination" in a state accused of violating
the Voting Rights Act, and "the extent to which voting in the elections of
the state or political subdivision is racially polarized."
In any event, a majority of the appeals court judges who considered
Arizona's two laws determined that they violate the Voting Rights Act.
The Court could deal a fatal blow to an already ailing Voting Rights Act
Much of the Voting Rights Act no longer functions due to conservative
decisions weakening that law. But at least one important prong of the law
remains intact and continues to provide a meaningful shield against racist
voting laws. The Democratic National Committee cases endanger this remaining
shield.
Less than a decade ago, the Voting Rights Act provided three protections
against racist voter discrimination. Section 5 of the law required states
with a history of racist voting practices to "preclear" new election rules
with officials in Washington, DC. Meanwhile, Section 2 of the Voting Rights
Act provides two separate protections against voter discrimination. It
prohibits election laws enacted with racially discriminatory intent, and it
also prohibits any state law that "results in a denial or abridgement of the
right of any citizen of the United States to vote on account of race or
color."
But the Supreme Court's decision in Shelby County v. Holder (2013)
effectively deactivated Section 5's preclearance regime. And the Court's
decision in Abbott v. Perez (2018) held that lawmakers enjoy such a strong
presumption of racial innocence that it is now extremely difficult to prove
that those lawmakers acted with racist intent - so difficult that it may be
impossible except in the most egregious cases.
The two Democratic National Committee cases involve the third prong of the
Voting Rights Act: the so-called "results test" that prohibits many election
laws that disproportionately disenfranchise voters of color.
As a young lawyer working in the Reagan administration, Chief Justice John
Roberts unsuccessfully fought to convince President Reagan to veto the law
establishing this results test; some of his memos from that era even suggest
that the results test is unconstitutional. And Roberts is, if anything, the
most moderate member of the Supreme Court's Republican majority.
Now that these cases are before the Supreme Court, in other words, the
Court's Republican-appointed majority could potentially dismantle the
results test. At the very least, it could water down that test to such a
degree that it no longer provides a meaningful check on racism in elections.
Simply put, the right of voters of color to cast a ballot is now in greater
peril than at almost any point since the Jim Crow era. Cases like Shelby
County and Perez already stripped the Voting Rights Act of much of its
force; the Democratic National Committee cases could finish that job.
These cases, moreover, are not just a historic threat to the right to vote.
They are potentially a historic threat to the Democratic Party's ability to
compete in US elections.
Because voters of color in general, and Black voters in particular, are
especially likely to vote for Democrats, Republican lawmakers can use race
as a proxy to identify communities with large numbers of Democratic voters.
They can then enact election laws targeting those communities, confident
that the law will mainly disenfranchise Democrats.
The Court's decision to take these cases, in other words, puts the debate
over whether Democrats should add additional seats to the Supreme Court in
order to dilute its Republican majority into stark relief. If the Democratic
National Committee cases end badly for the Voting Rights Act - and if
Democrats control Congress and the White House when these cases are handed
down - Democrats may have to choose between radical steps like packing the
Court or being permanently exiled to the political wilderness.
