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The Barrett factor: Would the new justice upend the Voting Rights Act?

The Supreme Court is set to hear a case early next year that could reset the balance between protecting election integrity and ensuring fair access for all voters.

Supreme Court nominee Judge Amy Coney Barrett listens as Sen. Jerry Moran, R-Kan., not shown, speaks during their meeting on Capitol Hill, Thursday, Oct. 1, 2020, in Washington.
Supreme Court nominee Judge Amy Coney Barrett listens as Sen. Jerry Moran, R-Kan., not shown, speaks during their meeting on Capitol Hill, Thursday, Oct. 1, 2020, in Washington.
Manuel Balce Ceneta, Associated Press

SALT LAKE CITY — President Donald Trump has nominated Amy Coney Barrett, a judge for the U.S. Court of Appeals for the 7th Circuit, to replace the late Justice Ruth Bader Ginsburg on the Supreme Court. Though a coronavirus surge among GOP senators has complicated the proceedings, Barrett’s confirmation is still expected. Her appointment would give the Supreme Court a 6-3 conservative majority that could shape rulings for decades.

One new case could weaken the Voting Rights Act of 1965, a landmark civil rights law. Last week, the court decided to hear Brnovich v. Democratic National Committee, to determine whether an Arizona “ballot harvesting ban” and other voting policies violate the act or the 15th Amendment by disproportionately or intentionally affecting racial minorities. The ruling could affect how governments navigate the tension between voting access and integrity.

The issue

  • In 2016, the Democratic National Committee sued the state of Arizona over one voting law and one policy. The law prohibited anyone but a caregiver or family member from mailing early voting ballots on behalf of another person. The policy instructed officials to discard a ballot if a voter goes to the wrong precinct. The DNC argued that both policies disproportionately affected racial minorities.
  • In 2017, a district court ruled in favor of Arizona, and an appeals court ruled with the district court. But an en banc rehearing by the appeals court reversed the earlier decision by a 7-4 majority. Judge William A. Fletcher wrote that the laws “have a discriminatory impact on American Indian, Hispanic and African American voters in Arizona.”
  • In April, Arizona attorney general Mark Brnovich appealed to the Supreme Court, writing that the law and policy are “commonplace election administration provisions used by Arizona and dozens of other States to prevent multiple voting, protect against voter intimidation, preserve the secrecy of the ballot, and safeguard election integrity.”

Barrett’s perspective

One of Barrett’s previous cases might be instructive. In 2019, as a judge on the U.S. Court of Appeals for the 7th Circuit, she heard Acevedo v. Cook County Officers Electoral Board. The plaintiff had been kept off the ballot for county sheriff after meeting the state’s requirement of 5,000 signatures but not the county’s higher threshold. He sued, arguing the county’s requirement was unconstitutional given its conflict with the state. Barrett ruled with the majority in favor of the county.

The decision

This case could set precedent in a highly contentious and partisan issue. According to NPR, Republicans have worried about election integrity since at least 1960, and Trump has frequently advanced claims of widespread voter fraud, though they’ve been quickly debunked. But Democrats argue such measures make it harder for marginalized communities to vote, which studies confirm. The court’s decision will likely draw the line between governmental expedience and the individual right to vote moving forward.

Key quote

“If the burden is slight, (precedent-setting cases) Anderson and Burdick make clear that no justification beyond the state’s interest in orderly and fair elections is necessary — even if less burdensome alternatives are available.” — Barrett in her Acevedo v. Cook County Officers Electoral Board opinion.