Jul 2, 2021 - Politics & Policy

Lawyers, advocates reeling from SCOTUS voting rights decision

Illustration of a gavel as a stick shift.
Illustration: Aïda Amer/Axios

Democratic lawyers and activists are scrambling to shift their legal strategy in their fight over voting rights.

Why it matters: Yesterday's Supreme Court ruling — its biggest Voting Rights Act case in years — will likely make it much harder for the Justice Department to successfully challenge Georgia's controversial new voting laws, experts said, and others like it in the future.

Driving the news: In a 6-3 ruling, the court upheld a set of voting restrictions in Arizona and began to set some new parameters for other, similar lawsuits. Those standards, while not fully formed, generally will benefit state legislatures and set a high bar for legal challenges.

  • Cases relating early voting and absentee voting are especially going to be harder to litigate, Common Cause's director of voting and elections, Sylvia Albert, told Axios.
  • The Biden administration has challenged Georgia's high-profile voting law under Section 2 of the Voting Rights Act — the same section whose scope the court began to narrow in yesterday's ruling. The decision will therefore make it harder for DOJ to win the Georgia case.
  • If Texas ends up passing a similar measure, that law, too, could be harder to challenge in court.

Between the lines: Some voting rights experts think Democrats put the wrong case in front of the Supreme Court, with its new conservative majority.

  • The Arizona case is "a very weak case, compared to, say, the fight over Texas's voter ID law," elections expert Rick Hasen told Axios.

Yes, but: Marc Elias, a top Democratic lawyer who's suing in 14 states over voting restrictions, noted in a statement that the Voting Rights Act is not the only option.

  • Most voter suppression laws are challenged on constitutional grounds, not as violations of the VRA, he said.
  • While "the court today wrongly limited the protection offerred under Section 2, it did not do away with them," he said.

Context: In 2013, the court neutered Section 5 of the Voting Rights Act, which required states and counties with a history of discrimination to get pre-clearance from the Justice Department before changing their voting procedures.

  • That made Section 2 all the more important, as voting-rights advocates were left with no choice but to fight voting changes after they've happened. And now that the court has begun raising the bar for those lawsuits, Democrats' ability to win the voting-rights fight in the courts keeps shrinking.

What to watch: Some hope that the court's decision will put more pressure on Congress to pass voting rights legislation.

  • "The Court’s decision, harmful as it is, does not limit Congress’ ability to repair the damage done today: it puts the burden back on Congress to restore the Voting Rights Act to its intended strength," President Biden said in a statement.
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