SCOTUS Ruling Will Be Successfully Challenged In Court

The unfortunate 6-3 decision in the Arizona voting rights case (Brnovich v DNC, July 1) makes two things perfectly clear. First, Congress must act to clarify the broad protection of our democracy centrally incorporated in the Voting Rights Act of 1965. Second, the Court majority is woefully disconnected from social and historical reality, particularly when it comes to the experiences of racial minorities who continue to face daily depredations of basic rights in our country. Still, as disappointingly unmoored as the decision is, it does not invite some open season on suppression of voting rights; such legislation can and will be successfully challenged in court, with the associated costs, monetary and otherwise, to our nation and its people.

The Court majority misinterpreted the Voting Rights Act (VRA) and froze its standards and expectations of our democracy in the landscape of nearly forty years ago. We can and must demand better in a 21st century América, with substantial changes in technology since the 1982 reauthorization of the VRA, as well as many recent lessons learned from an unprecedented modern pandemic during a national election. Congress and the President must now act to solidify in law our shared expectations of a fair and modern system of democracy that seeks to foster greater participation, not to restrict and deter in any way the right of every eligible citizen to vote. The Court majority’s wrongheadedness can be course-corrected by clear and detailed legislation enacted in advance of our next national election.

Justice Alito’s majority opinion accepts, with neither evidence nor research, the legitimacy of concerns about ‘voter fraud’ in two forms – ineligible voting and voter intimidation or coercion. This near-paranoid instinct to over-protect democracy has no basis in demonstrated fact. The evidence of significant voter fraud is simply non-existent. We should all be disturbed that two-thirds of our justices would accept, without apparent question, legislative intentions that have more grounding in the Big Lie of Donald Trump than in any measure of demonstrable social-science truth. A conservative Court majority that lives in a world of right-wing soundbite rather than the real world of lived experience cannot long maintain the support of a democratic nation.

A conservative Court majority that lives in a world of right-wing soundbite rather than the real world of lived experience cannot long maintain the support of a democratic nation.

Still, the courtroom tools to protect the right to vote from discrimination and narrow privilege remain sharp despite today’s attempt to dull them. Any state or locality seeking to create barriers to democratic participation will face swift and powerful challenge in court. The cases will ultimately be more costly – costs ultimately borne by the rights-offending jurisdiction – and arduous, but any legislator who interprets today’s decision as providing free scope to suppress minority voters in their full democratic participation will face a rude awakening in the courts.

Finally, MALDEF (Mexican American Legal Defense and Educational Fund) must express our concern that the July 1^st, decision comes out of Arizona, a heavily and increasingly Latino state, whose presidential election vote was fodder for the reckless challengers in Congress who acted despite a dangerous and unprecedented attempt at insurrection on January 6. Specifically in Arizona, there is no evidence of any fraud in voting; instead, what we have seen is the increasing participation of Arizona Latinos in voting, despite decades and decades of attempts to suppress their participation. MALDEF calls upon all leaders, including judicial leaders, to reject even implicit acquiescence in the false and damaging narrative that questions the legitimacy of a dramatically growing Latino vote in the United States.

Thomas A. Saenz

Thomas A. Saenz, president and general counsel of MALDEF (Mexican American Legal Defense and Educational Fund).

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