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.
Our Take: It is difficult to predict what the Supreme Court will or will not do on any case. What is certain is the Court is interested in the issues involved with these two cases. Those issues are:
“(1) Whether Section 2 of the Voting Rights Act compels states to authorize any voting practice that would be used disproportionately by racial minorities, even if existing voting procedures are race-neutral and offer all voters an equal opportunity to vote; and (2) whether the U.S. Court of Appeals for the 9th Circuit correctly held that Arizona’s ballot-harvesting prohibition was tainted by discriminatory intent even though the legislators were admittedly driven by partisan interests and by supposedly “unfounded” concerns about voter fraud.” Arizona Republican Party v. Democratic National Committee
“(1) Whether Arizona’s out-of-precinct policy, which does not count provisional ballots cast in person on Election Day outside of the voter’s designated precinct, violates Section 2 of the Voting Rights Act; and (2) whether Arizona’s ballot-collection law, which permits only certain persons (i.e., family and household members, caregivers, mail carriers and elections officials) to handle another person’s completed early ballot, violates Section 2 of the Voting Rights Act or the 15th Amendment.” Brnovich v. Democratic National Committee
In the first case there are a couple of important aspects of the two issues. The language isued in the first states “voting practice that would be used iisproportionately by racial minorities, even if existing voting procedures are race neutral.” This suggests that the Court may rule that if a voting practice is race neutral and offers an equal opportunity to vote then the act is valid.
The second issue involves “discriminatory intent” which is difficult to prove under existing law. If the record canot prove that intent then the act will be held valid.
In the second case, it is likely that the Court will uphold the action of not counting provisional ballots cast in person outside of the voter’s precinct. If there is no discriminatory intent, then the act is valid. Whether another person can deliver a ballot may also be an act that the Court finds is best regulated by local officials and, once again, if there is no intent to discriminate on race, the Court is likely to say such acts are appropriate. Any decision would impact mail in ballots in the next election.
Overall, considering the way the issues are worded in both cases, it is reasonable to expect that the Court will uphold the acts if there is no intent to racially discriminate as determined by the Court and the record before it.
Vox gives a well reasoned summary of how the Circuit Court of Appeals ruled on some of the issues being addressed and what the Supreme Court wants to review. It does appear there may be some changes ahead, but predicting what the Supreme Court does or does not do is risky business.
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.
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