Disconnected Decision from Supreme Court Leaves the Real Work to Voters and Congress
By Alex Gulotta, All Voting is Local
This post originally appeared on the American Constitution Society’s Expert Forum.
The U.S. Supreme Court’s shameful ruling in Brnovich v. Democratic National Committee drove home the fact that the Court is far removed from the needs of voters, and isn’t interested in ensuring democracy works for all, particularly for Latino, Native American, and Black voters in Arizona communities. The Court missed an opportunity to protect the freedom to vote at a critical moment in our history. Instead, six justices further damaged important protections Congress put in place to ensure that everyone has equal access to the ballot box. Today’s decision acknowledged the inequitable burden on Latino and Native American communities created by discriminatory laws. Ultimately, though, the Court didn’t think that burden mattered and upheld two discriminatory Arizona laws, which had previously been invalidated.
But it does matter here in Arizona, where the dire state of our democracy often feels disconnected from the national chatter in Washington, D.C. This year so far, the Arizona legislature has passed three serious anti-voter bills, SB1485, SB1003, and HB2569, already signed into law by Governor Doug Ducey, as well as two more, SB1819 and SB1823, passed days before the Brnovich decision. The harm of these bills is alarming: They are likely to remove more than 100,000 voters from the vote-by-mail list, prohibit voters from fixing missing signatures on their ballots, and ban election officials from accessing crucial grant funding for voter education and election administration. SB1819 is directly based on conspiracy theories: It creates a special committee to review any “findings” of the election review scam and allows for outside groups with partisan ties (like the farcical Cyber Ninjas) to review voter rolls.
There is a direct throughline between the current wave of anti-voter legislation and the two policies challenged in Brnovich. The first policy threw out provisional ballots cast outside of the voter’s designated precinct. The second restricted all but certain people (i.e., family and household members, caregivers, mail carriers, and elections officials) from handling another person’s completed early ballot. The state was only able to enact these ballot collection restrictions, as the Brnovich dissent notes, because the Court already gutted Section 5 of the Voting Rights Act in the Shelby County v. Holder decision. This policy was not able to obtain preclearance from the Justice Department under Section 5 while it was in effect. The Shelby County decision eliminated the need to obtain preclearance altogether, allowing the policy to be made law.
On its face, this case was about two Arizona procedures that created unnecessary and burdensome barriers for voters of color to cast their ballots and violated the Voting Rights Act, according to the abundant evidence and previous findings of the 9th Circuit Court of Appeals. But no person who works on voting rights in Arizona believes that this case was heard by the Supreme Court simply because the Court cared about the two policies challenged by voters under Section 2.
Instead, we know that the Brnovich policies, anti-voter legislation, and the Supreme Court’s desire to undermine Section 2 are all part of a broader, coordinated attack on our freedoms — from our freedom to vote to our freedom to assemble and speak out for the things we believe in. No one pushing these decisions, policies, or bills are fueled by facts or data, but by an unrelenting desire to maintain their own power by removing and diminishing the power of everyday Americans.
Take how the ballot collection law challenged in Brnovich originated and was implemented. A former lawmaker “motivated by a desire to eliminate the increasingly effective efforts to ensure that Hispanic votes in his district were collected, delivered, and counted” introduced it. The final legislation passed by state lawmakers was based on “farfetched allegations of ballot collection fraud,” the 9th Circuit found.
But these farfetched fever dreams had very real consequences for Arizonans once the law was enacted.
In October 2020, as Arizonans were casting their ballots for the general election, the attorney general sent uniformed deputies door-to-door in heavily Hispanic San Luis to question residents about their voting history as part of an investigation into “ballot collection.” This aggressive approach ultimately found a grand total of just four ballots that were delivered improperly under the law, despite questioning and potentially intimidating hundreds of residents. None of those four ballots were fraudulent, something already adequately prohibited under Arizona law. Instead, all the “ballot collection” ban did was create the ability to abuse a Hispanic community under false pretext, prosecute civic-minded people unaware of the law, and give anti-voter lawmakers the nefarious benefit of intimidating and suppressing voting in Black and Brown communities.
Now was the time when voters most needed the Court to say that enough is enough, voters pick our leaders — our leaders do not pick which voters to hear and which to silence. Instead, the Court chipped away at our foundational rights and blunted one of the last federal tools in our toolbox: Section 2 of the Voting Rights Act.
So it’s up to voters and Congress to do what the Court did not. With the Voting Rights Act even more diluted, it’s more important than ever that citizens who care about our democracy get involved by checking their registration, voting, and joining efforts at the local and state levels to help make sure that state laws and local election procedures are implemented in voter-friendly ways. Finally, Congress must pass the For the People Act and the John Lewis Voting Rights Advancement Act to restore the full strength of the Voting Rights Act and provide protection against discriminatory policies like those in Arizona.
The stakes could not be higher. This is a turning point for our nation. We must decide if we are going to let a determined, anti-democratic minority take away our rights and freedoms or if we are going to push our country to live up to its highest ideals.
As Justice Elena Kagan wrote in the Brnovich dissent, the Voting Rights Act “made a promise to all Americans. From then on, Congress demanded, the political process would be equally open to every citizen, regardless of race. One does not hear much in the majority opinion about that promise.” Therefore, it’s up to us to make sure they hear it. From the voter centers of Maricopa County to the halls of Congress, we must demand that promise be upheld.
Alex Gulotta is the Arizona State Director and Acting National Director of All Voting is Local, a collaborative campaign of The Leadership Conference on Civil and Human Rights. All Voting is Local fights to remove needless and discriminatory barriers to the ballot in eight states — Arizona, Florida, Georgia, Michigan, Nevada, Ohio, Pennsylvania, and Wisconsin.