Non-news alert! Democrats now control the House, the Senate and the White House. And this is in part the result of record voter turnout.
It is crucial for Congress to take this opportunity to pass a new Voting Rights Act that truly protects the right to vote.
It therefore may be no coincidence that Republicans in some states, like Georgia, have proposed new laws that could make it harder to vote. A new report by the Brennan Center for Justice lists over 100 measures introduced in states that would restrict the right to vote.
This is all happening just in time for the latest and greatest voting rights case to land on the Supreme Court’s steps. On Tuesday, the high court will hear oral arguments in a case that could determine the scope and force of the Voting Rights Act. The case involves two voting practices in Arizona that are alleged to violate federal law. One practice involves throwing out ballots that are provisionally cast in the wrong precincts on Election Day, and the other relates to who can return early ballots on behalf of voters.
Many, including Democrats challenging the Arizona laws, have argued and will argue that this is the moment for the Supreme Court to firmly and clearly recognize that the Voting Rights Act protects against these types of vote denial. There is good logic behind this. No one who wants to validly cast a vote in America should have to face unnecessary burdens to do so.
As much as it is important for the Supreme Court to define the reach of what remains of the Voting Rights Act, it is crucial for Congress to take this opportunity to pass a new Voting Rights Act that truly protects the right to vote. A blueprint has already been drafted — the John Lewis Voting Rights Advancement Act.
First, a quick reminder about what is left of the Voting Rights Act, why the Supreme Court must still ensure that it acts as a true protection for the right to vote and why Congress must amend it.
It would be unwise to rely on the current court to use what is left of the Voting Rights Act to adequately protect the right to vote.
The Voting Rights Act is a landmark piece of civil rights legislation enacted in 1965 to guard against disenfranchisement of African Americans. The 1965 act had two main parts: Section 2 created a national prohibition against “voting practices or procedures that discriminate on the basis of race, color” or membership in a protected language minority group. If you think a jurisdiction (a state or locality) has violated Section 2, you have to find a lawyer and prove your case. The burden is on individual plaintiffs.
Section 5, now dormant, required that certain jurisdictions with histories of discrimination against voters had to check in with the federal government before they made any changes to their voting practices or procedures. Under this section, jurisdictions covered under Section 5 had the burden of showing why their proposed voting changes were permissible.
Functionally, there is a big difference between putting the burden on individuals to prove a wrong versus putting the burden on the government to prove a right. Back in 2013, the Supreme Court declared that the formula used to determine which jurisdictions would be covered by Section 5 was invalid, and therefore Section 5 now stands as an unenforceable empty promise to protect the right to vote. The John Lewis Voting Rights Advancement Act would create another coverage formula and help restore the protections the Supreme Court erased in 2013.
And next, let’s talk specifics about the Arizona election law case. Two issues are before the Supreme Court. First, does an Arizona policy that requires the trashing of provisional ballots that are cast in person outside a voter’s district on Election Day violate the Voting Rights Act? Second, does an Arizona law that prohibits anyone other than family and household members, caregivers, mail carriers and election officials from turning in a voter’s early ballot violate the Voting Rights Act or the 15th Amendment to the Constitution? Functionally, there is a big difference between putting the burden on individuals to prove a wrong versus putting the burden on the government to prove a right. Two big questions are before the court — are those voting practices illegal because of an alleged discriminatory effect on racial minorities, and what standard should we use to make that determination? Democrats lost twice and won once in lower-court rulings. The 9th Circuit Court of Appeals applied something called a “results test” to determine whether the policies violate Section 2. Under this test, a court must first ask whether a law or a policy disproportionally affects the ability of racial minorities to take part in the political process or “elect candidates of their choice.” If the answer is yes, the next question is whether that inequality is caused by a link between the law or the policy being challenged and “social and historical conditions” that create an inequality of opportunity. The 9th Circuit concluded that both of Arizona’s practices failed under the “results test.” Because the Supreme Court is more conservative than it was in 2013 when it crippled the 1965 Voting Rights Act, it would be unwise to rely on the current court to use what is left of the Voting Rights Act to adequately protect the right to vote. It is worth remembering that when the makeup of the court was more progressive than it is now, it essentially trashed one of the two columns of the Voting Rights Act. It is not the court that is likely to make the remaining column more robust. Instead, it is up to Congress to act and President Joe Biden to sign a more robust voting rights act — not in six months, but now. Now, in the face of an onslaught of proposals to restrict the right to vote. Now, with another Supreme Court ruling whittling away at the right to vote hanging in the balance. If Congress is not in love with the current version of the John Lewis Voting Rights Advancement Act, it can wholly or partly change it. Our rights are in your hands, Congress.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
