‘This is not a great outcome’: SCOTUS ruling brings fear of explosion in voting restrictions

Donald Trump's false claims about losing the 2020 presidential election may have failed to gain traction in the courts, but the former president's political base is racking up significant judicial wins in the country's ongoing voting rights war.

Conservative activists have succeeded in getting 17 states to pass more than two dozen laws tightening election procedures since January. The GOP has also done well defensively, blocking congressional Democrats from enacting federal changes last month.

Now heading into the final weeks of summer, progressives worry their opponents will be encouraged to pursue further restrictions after a notable U.S. Supreme Court decision this month upheld two Arizona election measures, which some legal scholars warned guts the vaunted Voting Rights Act of 1965.

"This is not a great outcome for those who believe that voting is truly important in a democracy, and for those who generally are more marginalized from voting," said Melissa Murray, a NYU law professor and leading expert in constitutional law.

As a result, left-leaning activists say, the 6-3 SCOTUS decision signals that the high court has turned its back on protecting communities of color against voter suppression laws.

They are forecasting a gloomy 2022 of draconian rules coming through the legislative pipeline in key states that will have a disproportionate impact on Black, Hispanic and Native American voters.

"This decision is saying that democracy is for white people and that it is OK if a law creates an additional burden on a community," said LaTosha Brown, co-founder of Black Voters Matter, which has been leading mobilization efforts throughout the South.

All eyes are on Texas, other statehouses

One of the first places progressive activists are bracing for conservatives to take advantage of the high court's decision is Texas, where lawmakers started a special session this week to deal with "unfinished business," according to Republican Gov. Greg Abbott.

Among the items on the agenda is a controversial Republican backed bill that Democrats argue targets racial minorities by overhauling the election process through changing early voting hours on Sunday.

Sean Morales-Doyle, acting director of the Voting Rights and Elections Program at the Brennan Center for Justice, a liberal think tank, said there is no sign Republican-controlled legislatures will relent.

"The Supreme Court's decision will certainly embolden some who are interested in restricting the right to vote," he said. "There will be some who feel that this gives them permission to do more."

But Morales-Doyle said there is continued hope that President Joe Biden and congressional Democrats will take significant steps to expand access ahead of the midterm elections.

Vice President Kamala Harris, who is in charge of the White House's voting rights fight, on Thursday unveiled a $25 million Democratic investment to "assemble the largest voter protection team" in history.

"We are fighting back," Harris told the audience at Howard University. "In states, we have successfully blocked some anti-voter bills from becoming law — and others are being challenged in court. In Congress, we are working to pass two bills into law that would protect and strengthen voting rights."

In the meantime, Morales-Doyle said, mobilization efforts in respective states must remain active.

"Sometimes the resistance against these bills in the states succeeds," he said. "The bill in Georgia, for example, was a terribly restrictive bill as well. But actually, some of the most restrictive pieces of it were cut out along the way in response to an organized opposition."

GOP: Arizona case ‘win for voters’

In conservative circles, the Supreme Court's decision in Arizona is looked as a significant step toward at protecting people's faith in the ballot box.

Arizona Attorney General Mark Brnovich, who successfully argued the case, told USA TODAY the six justices who ruled in his favor have simply established that states have the legal right at creating their own guidelines.

"I do not believe that election integrity should be a partisan issue," Brnovich said. "Everyone deserves to know that their vote has been accurately counted and to have confidence in the election results."

Much of the national narrative has cast Republican state officials as pursuing these changes in response to Trump's misleading statements about the election.

But proponents of stricter rules say it is unfair to connect all of the reforms being pursued by Republicans at the state level to the former president, especially in Arizona, where the case stems from a pair of laws passed before he was elected president.

"The legislation you're seeing now, regardless of whatever it was Donald Trump said post-election, is a reaction to a lot of the pre-election changes that the left was seeking," said Republican election attorney Jason Torchinsky, who filed a brief backing Brnovich.

Torchinsky said what's been missed in the political frenzy is how states need to update the rules around different procedures, such as mail-in voting, that many states used for the first time during the coronavirus pandemic. He said that has raised legitimate questions among conservatives who don't agree with Trump's false assertions about the election.

"Historically, there have been all kinds of checks in place to verify people's identity when they come to vote," Torchinsky said. "With mail balloting, you have less of an opportunity to do that, so it makes sense that there are going to be controls put in place that you know who is actually requesting and casting absentee ballots."

Of the two Arizona policies at issue in the case that made it to the Supreme Court, the one limiting how voters may return absentee ballots has become the most contentious.

Supporters have long argued the practice — called "ballot harvesting" by critics — is meant to help low-income voters, especially those who cannot locate their polling place, or lack transportation or mail service. An appeals court finding leading up to the Supreme Court case, for instance, showed only 18% of Native Americans in Arizona had access to home mail service.

Right now 26 states allow a voter to assign another person to return a ballot, according to the nonpartisan National Conference of State Legislatures. But many other state laws are silent on the question.

Third party individuals and groups collecting ballots on behalf of voters is something both parties engaged in during past elections. But in the current climate, that thinking has changed on the political right due in large part to Trump and a growing chorus of his supporters, some who maintain the election was stolen.

Jason Snead, executive director of Honest Elections Project, a leading group on restrictive voting laws founded by former Trump advisor Leonard Leo, said his organization has never defended the former president's assertion that the election was stolen, and was critical of the January rampage at the Capitol that was fueled by that rhetoric.

But he said there is a legitimate reason many want to "tighten the nuts and bolts" of previously and newly passed voting policies.

"You don't wait to lock your front door until after you've been robbed," Snead said. "Everyone knows you lock your front door at night, whether you've been robbed or not."

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When asked to defend election changes, GOP operatives and lawyers often call attention to the 2018 congressional race involving North Carolina Republican Mark Harris, who was forced to drop out after an investigation into a GOP operative illegally tampering with collected absentee ballots.

Snead said that case underscores why allowing people with a vested interest in the outcome to collect ballots is rife for misbehavior — whether fraud is found to be widespread or not.

"The issue is not when voters, like the elderly or sick, need to get help or that they should not be able to get help," he said. "The question is who should be providing that help, and what protections do there need to be in place in order to ensure the sanctity of voting process."

Honest Elections Project released a statement Thursday, the day Texas legislators convened for their special session, saying election reform "deserves open and honest debate" including discussion on "stronger bans on ballot (harvesting)."

Whether Lone Star State officials take heed, legal thinkers and political operatives on the right aren't shying away from the possibility of seeking those provisions in other states in the coming months.

"Elections are an area where there is essentially a constant need for change because a lot of what's happening is subject to change regularly," Torchinsky said.

"You look back 30 years ago, the number of states where you could vote absentee, no excuse was extremely limited. Now, it's more than half the country. The way we run elections are evolving, and I think states as laboratories of democracy should have the flexibility to evolve and change as people's voting habits change and as policies change."

Voting Rights Act on ‘last leg’

For progressives, there is an intensely held belief that this latest chapter in the fight over U.S. elections is more than just a political setback before next year's midterms.

Many view the Arizona case as the death knell for the Voting Rights Act, the landmark 1965 legislation that is considered the crowning achievement of the Civil Rights Movement.

"What is tragic here is that the court has (yet again) rewritten — in order to weaken — a statute that stands as a monument to America's greatness, and protects against its basest impulses," wrote Justice Elena Kagan in a dissent for the high court's liberal wing.

Kagan is referring to Shelby County v. Holder, a 2013 case where the Supreme Court eliminated Section 5 of the Voting Rights Act, which for decades required certain states with a history of racially discriminatory laws, including Arizona, to obtain federal approval before making any voting rule changes.

Without the requirement of federal oversight, voting rights advocates leaned on another provision – known as Section 2 – which allowed litigation against voting restrictions that discriminate, whether intentionally or not.

But liberals now fret that part of the act is in jeopardy after the high court's conservative majority concluded that the burdens imposed by the two Arizona laws were modest and acceptable.

Further, the court held, any racial disparity in Arizona was too small to violate federal law.

"Voting takes time and, for almost everyone, some travel, even if only to a nearby mailbox," Justice Samuel Alito wrote in the majority opinion. "Mere inconvenience cannot be enough."

Murray, the NYU law professor, told USA TODAY the ruling creates a higher legal bar in terms of proving discrimination for any future voting rights challenge. She said the Voting Rights Act is "definitely on its last leg."

The court, for instance, did not establish a test for lower courts to use in potential litigation over similar laws going forward, but rather set up five factors Murray described as favoring restrictions that do not fully address multiple questions about there "mere inconvenience" the majority opinion has established.

Alito's opinion asserts that because voting requires "some effort" people should expect the "usual burdens of voting." But when it comes to discrimination, he said, the courts must consider the "size of any disparities" on members of a different racial or ethnic group.

That is concerning to voting rights advocates given the act's decades-long reliance on the effects-based theory of liability — a belief that even a neutral policy change can disproportionately affect one group compared to another.

"Everybody understands that in this day and age, there is no one who's going to stand on the floor of any statehouse saying, 'You know, what I really want to do with this law is to stop Black people and Native Americans from voting,'" Murray said.

"No one is ever going to say that, so it's really this nod to more subtle changes that certain restrictions are going to disproportionately impact certain communities."

Grassroots activists in the middle of the political fight said the SCOTUS ruling ignores practical roadblocks that make it harder for certain groups to vote, such as voting drop boxes being less available on reservations to Indigenous voters in Arizona.

"Now the burden is you have to show whether it was intentional," said Brown, the Black Voters Matter co-founder. "I deal with intentional and unintentional racism every day. All racism is intentional."

Asked about liberal criticism that the case he argued paves the way for racially discriminatory election laws, Brnovich bristled at the suggestion, saying political activists are using "inflammatory language to push their agenda."

He noted that Arizona has allowed no-excuse absentee voting since 1991, "which is something that many other self-proclaimed progressive jurisdictions" do not offer.

"Those states could learn a lot from Arizona," Brnovich said.

One state legal observers have pointed to as an example of bucking the current trend being pursued by Republican-led legislatures is Kentucky, an increasingly red state that passed legislation expanding voting access while also establishing new security practices.

The Bluegrass State, which had some of the country's more restrictive laws until the pandemic forced a bipartisan compromise during the 2020 election cycle, now allows three days of in-person early voting; permits people to "cure" their absentee ballots to avoid it being discarded; and establishes local vote centers where residents from any precinct can cast their ballot.

Republican Michael Adams, Kentucky's secretary of state, said while he opposes ballot harvesting, state and federal policymakers could lower the temperature around the voting rights debate next year by heeding his state's bipartisan approach.

"I'm very dubious of election bills written by think tanks on both sides," he said.

Congress has taken notice, and has invited Adams to discuss the state's reforms before a July 12 House committee hearing.

"Election officials should be at the table to write these provisions, because we know what we're talking about and it's not an ideological project for us," he said. "It's just trying to make our elections work and and meet our constituents needs."

Follow Phillip M. Bailey online @phillipmbailey.

This article originally appeared on USA TODAY: Voting rights advocates fear swarm of restrictions after SCOTUS ruling