On July 16, 2021, Ezra Rosenberg, co-director of the Voting Rights Project, testified before the Subcommittee on the Constitution, Civil Rights, and Civil Liberties of the U.S. House of Representatives Judiciary Committee. The hearing, “The Implications of Brnovich v. Democratic National Committee and Potential Legislative Responses,” examined how to reconstruct Section 2 of the Voting Rights Act (VRA), and the need for legislation that will prevent racial discrimination in voting.
Rosenberg began his testimony by discussing several, important cases that were brought under Section 2 of the Voting Rights Act. He cited Veasey v. Abbott, a case that challenged Texas’ photo ID law under Section 2 of the VRA, and was successful in proving that the law disproportionately affected Black and Latinx voters. Ultimately, the state was forced to change its law.
Rosenberg also discussed the facts of the Brnovich case, the decision, and its consequences. In Brnovich, the Supreme Court reviewed two Arizona voting practices. One mandated that votes cast out of the voter’s precinct (“OOP”) not be counted, and the other prohibited the collection of mail-in ballots by anyone other than an election official, a mail carrier, or a voter’s family member, household member, or caregiver. The Ninth Circuit Court of Appeals ruled these practices were in violation of Section 2. In a 6-3 opinion, the Supreme Court reversed the decision, and in doing so, made it more difficult for civil rights plaintiffs to prevail on Section 2 claims. While the decision did not strike down Section 2, it threatens to undermine the core purpose of the VRA and the congressional intent for Section 2 claims.
Rosenberg explained how the convergence of the Shelby County and Brnovich decisions will make it significantly harder to prevent voting discrimination, and easier to pass laws that will suppress the vote. Coupled together, these two decisions gutted the most effective provisions of the VRA, and left voting rights groups anticipating an even more severe rollback of voting rights than what we have already experienced.
