The Supreme Court’s decision on voting rights suggests that limits to the convenience of voting methods may be relatively permissible, while new burdens on casting a ballot in-person might be more vulnerable.
By Nate Cohn
What kind of restrictions on voting violate Section 2 of the Voting Rights Act? That’s the basic question in the wake of the Supreme Court’s decision to uphold two Arizona voting provisions last week.
The court’s decision didn’t offer a clear answer. Instead, it offered “guideposts” to illustrate why the Arizona law passed muster, without clearly indicating when a law might go too far. Those guideposts appear to set a high bar for successful voting rights litigation.
But the guideposts offer lessons about what kinds of voting restrictions might be more or less vulnerable to legal challenge.
Many of those lessons stem from a central concept underlying the decision: the idea that every voting system imposes certain “usual” burdens on voters, like traveling to a polling station or returning your ballot.
Justice Samuel Alito, writing for the majority, made the case that these burdens may inevitably result in “some” racial disparity. As a result, the conservative justices reject the idea that racial disparity alone is sufficient to establish that a state denied everyone an equal opportunity to vote. That leaves the court looking for signs of a particularly unusual and distinctive burden, even though this added hurdle doesn’t exist in the text of the Voting Rights Act.
The court found, without too much trouble, that the two Arizona laws weren’t particularly unusual or burdensome. That was not surprising. Even the Biden Justice Department said the laws did not violate the Voting Rights Act. But the way the court reached that conclusion nonetheless said a lot about what kinds of laws might survive judicial scrutiny.
The court’s reasoning suggests that restrictions on the convenience of voting methods may be relatively permissible, while new burdens on in-person voting, whether a reduction in precincts or new voter identification requirements, might be more vulnerable. It may even mean that states with relatively lenient voting laws might have more leeway to impose new restrictions. And no matter what, a fairly large racial disparity — backed by strong statistical evidence — may be crucial in future cases.
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