The restrictive voting laws that Republican-led states are implementing this year are more likely to withstand legal challenges, experts said, after the Supreme Court on Thursday gave states the tacit green light to go as far as they want in imposing measures they say are intended to combat election fraud — even at the cost of protections for minority voters.
The court’s ruling came in an Arizona case, in which Democrats had challenged two voting restrictions: one requiring ballots cast at the wrong precinct to be thrown out; and one prohibiting campaign workers, activists and others from collecting and returning ballots, a practice that Republicans have called “ballot harvesting.”
In its 6-3 ruling siding with Arizona, experts said, the Supreme Court signaled that it would likely side with other states enacting new voting restrictions in the name of preventing voter fraud.
Republican-controlled statehouses have seized on former President Donald Trump’s lie that widespread voter fraud cost him the 2020 election, rushing to implement new restrictions on practices that Democrats and voting rights advocates say broaden access to the ballot box, including mail-in voting and early voting.
“Although lower courts will have to sort through exactly how much harder today’s ruling will make it to challenge voting restrictions, the one undeniable point is that more of the post-2020 state restrictions will survive under today’s ruling than would have before today,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas Law.
Already, 17 states have enacted 28 laws since the 2020 election that restrict ballot access, according to a new tally as of June 21 by the Brennan Center for Justice at the New York University School of Law.
Georgia and Florida are among the presidential battleground states that have implemented strict new voting laws. The Republican-led legislature in Texas was blocked from doing so when Democrats walked out on the final hours of this year’s legislative session, but GOP lawmakers are expected to try again in a special session scheduled for next week.
Pennsylvania’s Democratic governor, Tom Wolf, this week vetoed new voting restrictions approved by the Republican-led legislature there. Republicans who control the Michigan legislature have also advanced measures that would make it harder to vote, and GOP officials there have plotted ways to circumvent Democratic Gov. Gretchen Whitmer’s veto.
Rick Hasen, a voting rights expert at the UC Irvine School of Law, wrote in a blog post that “the conservative Supreme Court has taken away all the major available tools for going after voting restrictions.”
He said the court’s ruling makes it harder to prove intentional racial discrimination — “making it that much harder” for the Justice Department to win its recently announced lawsuit challenging a new voting law implemented this year by Georgia’s Republican-led state legislature and GOP governor, Brian Kemp.
“This decision is very harmful and it is going to make it harder for anyone to be able to challenge discriminatory voting laws,” Arizona Secretary of State Katie Hobbs, a Democrat who is running for governor, said on CNN.
Former Attorney General Eric Holder said that “the impact of this activist, ideologically-driven decision will be felt in the future and far outside the borders of Arizona. These laws, and others like them, are unnecessary, and they will result in the effective disenfranchisement of countless American citizens — especially people of color.”
Ultimately, Democrats’ clearest path to halting states’ restrictive voting laws is in Congress — where the party has broadly backed the For the People Act, which would create an automatic national voter registration system and establish standards for mail-in voting, and the John Lewis Voting Rights Act, a measure named for the late Georgia congressman and civil rights icon that aims to prevent states from implementing racially discriminatory voting laws.
The John Lewis Voting Rights Act would do so by reviving a key provision of the Voting Rights Act of 1965: the requirement that states with a history of discriminatory voting laws get federal “preclearance” before changing their voting laws.
The Supreme Court struck that “preclearance” requirement down in 2013. And in Thursday’s ruling, the court said that the reality that restrictive voting laws could make it harder for Black and brown people to vote should not be “artificially magnified” because of differences in “employment, wealth, and education.”
“To the extent that minority and non-minority groups differ with respect to employment, wealth, and education, even neutral regulations, no matter how crafted, may well result in some predictable disparities in rates of voting and non- compliance with voting rules,” Justice Samuel Alito wrote in the opinion backed by all six of the court’s conservative members and opposed by its three liberals.
The ruling was met with harsh criticism from progressives — on the Supreme Court, in Congress, on the campaign trail and in left-leaning organizations — who said it opens the door for more state laws that make it harder for people of color to cast ballots.
“Weaken the Voting Rights Act, and predictable consequences follow: yet a further generation of voter suppression laws,” liberal Justice Elena Kagan wrote in her dissent.
NAACP President Derrick Johnson called Thursday’s court ruling “a frontal attack on democracy” and said the NAACP “will fight with everything we’ve got to restore the Voting Rights Act to its full strength and ensure that voters of color are protected in exercising their right to fully participate in our democracy.”
The problem Democrats face is that reaching the Senate’s 60-vote threshold to break the filibuster is impossible in the face of wide Republican opposition. And some Democrats, including West Virginia Sen. Joe Manchin and Arizona Sen. Kyrsten Sinema, have opposed abolishing the filibuster to clear the way for new voting laws.
Eliminating the filibuster has become a popular talking point among Democratic candidates ahead of 2022’s midterm elections.
Pennsylvania Lt. Gov. John Fetterman, who is running for the state’s open Senate seat, said the court’s ruling “gave voter suppression the green light” and said he would vote to abolish the filibuster to clear the way for new voter protections.
“The Senate needs to act right now, and if I were in the Senate, I would proudly cast the 51st vote to abolish the filibuster and pass the For the People Act and the John Lewis Voting Rights Act,” he said in a statement shortly after the court’s ruling. “Our democracy depends on it.”