by Ray Levy Uyeda
On July 13, President Joe Biden championed his support for the For The People Act, potentially the most significant voting rights legislation since the passage of the Voting Rights Act in 1965. The Philadelphia speech was a response to the court’s decision made public just two weeks prior. Justice Samuel Alito authored the 6-3 decision in Brnovich v. Democratic National Committee, finding that the state of Arizona had not violated the Constitution in approving two laws: one that forbade certain individuals, like family or community members, from collecting and delivering ballots for multiples of voters, and a second law that prohibited voters from casting ballots in precincts they were not assigned to.
“It’s not wholly surprising, what we’re seeing out of the Supreme Court, given the politicalization that has happened over the last decade of the court and the erosion of support that we’ve seen for voting rights since the Voting Rights Act was gutted back in the Shelby [County] v. Holder case [almost] a decade ago,” said Charlie Bonner, the director of communications at MOVE Texas, a grassroots, nonpartisan nonprofit that mobilizes and registers young Texas voters. “We know at this point that it is extraordinarily difficult to fight for voting rights in the courts.”
While the act could negate many forms of voter disenfranchisement put in place at the state level over the past decade, end civically harmful policies touted during the Trump administration, and address the cracks never fully covered by the legislation of the 1960s, it’s questionable how much of a chance the bill really has. Even though the legislation, known as H.R. 1, is overwhelmingly popular among voters, it’s unlikely the legislation will pass or get a debate on the floors of the Senate and House of Representatives. Coupled with a recent Supreme Court ruling, voter access organizations are doubtful that the legislative and judicial systems are able to correct the disparities they create.
With over 400 restrictive voting bills introduced at the state level, the country is at a “critical inflection point in the fight for the freedom to vote both in the states and at the federal level,” Bonner said. Voting rights advocates and organizers are worried, and expecting that the Brnovich decision will bear the same fruit as Shelby County: Less than a day after the 2013 SCOTUS ruling, Texas instituted a severely restrictive voter identification law, a provision that some claim reduces voter fraud, though evidence shows it really prevents poor, elderly, and immigrant voters from casting their ballots.
Proponents of the laws, such as Texas Republican leaders as well as the Republican National Committee, argued that the two provisions are necessary protectorates against voter fraud while Democrats said that these laws will function as a voter restriction and that voter fraud—the justification the laws hinge on—is relatively nonexistent. One tabulation by the U.S. Elections Project, which includes data analysis by University of Florida professor Michael McDonald, puts the count at 35 fraudulent in-person votes for over 800 million cast in presidential elections between 2000 and 2014. Democrats believe eliminating the infinitesimal percentage of fraudulent in-person votes shouldn’t be more important than allowing millions of eligible voters to cast their ballots. Both sides pointed to Section 2 of the Voting Rights Act, a lesser known part of the legislation that has an established test for evaluating whether or not a voting provision is racist or discriminatory in order to evaluate the constitutionality of the laws.
The restrictive voting laws, as Prism reported, will adversely impact the ability of Native peoples living on reservations to cast their ballots. Native peoples, who as a voting bloc are determinative of electoral outcomes, often rely on a single person with access to a car and the time to drive to the nearest polling location, which tend to be situated far from reservations.
Ultimately, in Brnovich, the court sided with the state of Arizona, saying that the “Mere inconvenience [of voting] cannot be enough to demonstrate a violation of [Section] 2.” In other words, discriminatory impact does not relay a discriminatory intent. The court even acknowledged that the issues accessing the ballot box were real, but that a long early vote period helped absorb the impact of living far from a precinct. “The burdens that fall on remote communities are mitigated by the long period of time prior to an election during which a vote may be cast either in person or by mail and by the legality of having a ballot picked up and mailed by family or household members,” Alito wrote. Although the ruling was quite vague, voting rights activists and proponents of voting access know that the ripple effects will continue to be felt for years.
“Despite the court’s own acknowledgment of the inequity of its decision, this outcome will only make us stronger,” said Shannon Holsey, treasurer of the National Congress of American Indians and Tribal president of the Stockbridge-Munsee Band of Mohican Indians. “Tribal Nations in Arizona and across Indian Country made our voices heard in the 2020 elections and we will stand together to protect our rightful access to the ballot box, including supporting legislation that will help create equal opportunity for all voters to participate in each and every election.”
If the onslaught of voter restrictions at the state level are a backlash to the increasing voter participation by young people and people of color and unprecedented vote by mail turnout in the 2020 elections, then Bonner is hoping that the SCOTUS ruling will catalyze a backlash to the backlash.
“We can’t just rely on this legal system any more,” Bonner said. “It’s gonna take truly the power of the people and we really see this being driven by young advocates across the country who are increasingly getting involved. I think even if you just look back at the last election, we saw that historic turnout being driven by young people, particularly young people of color, but we also saw young people step up and become election workers.”
Bonner is right: In 2020, 1.3 million of Texas’ young voters cast early ballots in the election and accounted for nearly 13% of the state’s electorate. He believes this demonstrates just how vital it is for voters to turn out in overwhelming numbers to prevent voter suppression from clouding an election’s outcome.
“That means that we’re not going to the polls alone,” Bonner added. “That means that we are bringing our friends and our neighbors with us, that we ourselves are becoming trusted sources of election information for folks who might not have access. That is something that all of us can do to tear down those barriers because we know we can’t rely on anybody else right now. It’s going to be the power of the people that overcomes these laws.”
This week, the Texas legislature was poised to gather for a special legislative session demanded by Republican Gov. Greg Abbott when the Democratic caucus staged a walkout in protest of the agenda, which included voter restrictions. On the first day of the session, Bonner says that 300 Texans rallied at the statehouse, and then “went office to office advocating for protections for the right to vote, not for these intentional barriers.”
Despite lobbying for the passage of voter protections in his speech, Biden didn’t offer any structural changes to American civil and electoral participation, even though that’s exactly what Bonner said is needed to protect voting rights. Instead, communities affected by voter restrictions are again being left on their own to come up with solutions to work around or break those barriers to ensure their votes are counted. And the promise of developing and implementing is in large part why voters turned out in such high numbers to vote for the Biden administration in the 2020 election.
“It’s going to take federal intervention in the way of the For The People Act and the John Lewis Voting Rights Advancement Act to make sure that we can have the federal oversight we need that worked for decades to protect the freedom to vote in states like Texas,” he said.
Ray Levy-Uyeda is a Bay Area-based freelance writer who covers justice and activism. Find them on Twitter @raylevyuyeda.
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