ATLANTA
(AP) — When some Georgia voters endured a pandemic, pouring rain and
massive waits earlier this month to cast their ballot, President Donald
Trump and other Republicans blamed local Democrats for presiding over
chaos.
“Make
no mistake, the reduction in polling places is a result of a concerted
effort by Democrats to push vote-by-mail at the expense of in-person
voting,” said Justin Clark, the Trump campaign’s senior counsel.
“Nothing more and nothing less.”
But
the meltdown was also a manifestation of a landmark Supreme Court case
that gutted a key provision of the Voting Rights Act. The 2013 decision —
Shelby County v. Holder — was heralded by conservatives at the time for
invalidating a longstanding “preclearance” process that required
certain states and jurisdictions with high minority populations and a
history of discrimination to get federal approval for any changes to
voting procedures.
Seven
years later, the fallout from that decision is colliding with
unprecedented changes to the way elections are being conducted. In
response to the coronavirus, many states are encouraging mail-in voting.
That — combined with a reduction in poll workers — has prompted the
consolidation of polling places.
That
reduction would have been much harder to pull off in Georgia without
the Supreme Court decision. Voting rights advocates are braced for more
potential trouble on Tuesday when another round of states hold
elections.
In
Kentucky, the planned reductions in polling places are even sharper than
Georgia, with fewer than 200 across a state that usually has nearly
3,700, prompting worries especially about the state’s most populous
cities where Kentucky’s nonwhite population is concentrated.
Meanwhile,
Trump has railed against voting by mail, arguing without evidence that
it could contribute to fraud. Conservatives are trying to use an Arizona
case over absentee voting to further weaken the Voting Rights Act. And
concerns are mounting across the ideological spectrum that the changing
nature of elections could leave some Americans questioning the result in
November.
“Everything
is happening at once right now,” said University of Georgia law
professor Lori Ringhand, citing the pandemic, states like Georgia moving
to new voting machines and years of legal wrangling over racial
discrimination and election security. “It’s just a perfect storm
happening in a political environment that has politicized the very act
of making voting either easier or harder.”
Democrats
worry that the GOP goal is to make voting harder. Trump is especially
critical of moves that would expand voting by mail and warned without
evidence on Monday that foreign countries may try to print ballots.
“That’s
going to be Trump’s mantra through September, October: ‘They’re going
to try to steal the election!’” said Terry McAuliffe, the former
Virginia governor and onetime Democratic National Committee chairman.
Georgia
Democratic Party Chairwoman Nikema Williams said the anxiety among many
in her party is a reminder that a full-strength Voting Rights Act is
needed, though she accepts that federal law won’t change before
November.
“Your right to vote should not depend on your zip code, what county you live in,” she said.
Joe
Biden, the presumptive Democratic presidential nominee, has called for
restoring the Voting Rights Act, but he has not released detailed
proposals.
A
key question is whether to attempt a new version of “preclearance” by
updating the formula used to decide what states and local areas must
submit to the process, since that formula is what the Supreme Court
ruled impermissible. The path more likely to withstand the court’s
scrutiny, said Ringhand, is for Congress to set standards that apply
nationally.
A White House spokesman declined to comment when asked whether Trump might ever pursue a Voting Rights Act update.
The
previous requirements were a key voting rights tool because it turned a
usual legal principle on its head. Litigants usually must wait until
after some harmful action before asking a court for relief, but
“preclearance” put the burden on government officials to prove their
proposed election rules would not harm minority voters.
Kentucky, which is among the states holding primaries on Tuesday, had not been affected by that provision.
Voting
rights advocates sued there anyway under the remaining law’s general
prohibition on discrimination, but a federal District Court ruled the
overhauled precinct plan was allowable. That decision shows the
difficulty citizens sometimes have in proving voting rights violations,
especially when the challenge is theoretical, before an election has
even taken place.
The
burden could get even heavier if Republicans and conservatives get
their way in an Arizona case. That dispute started with a challenge to
the state’s ban on “ballot harvesting,” the practice of third parties
rounding up absentee ballots.
A
federal appeals court ruled against the law, using Section 2 of the
Voting Rights Act. Congress spelled out in 1982 that it intended that
part of the law to be applied as a “results” test, meaning courts would
simply judge whether laws from elections procedures to district
boundaries for elected posts had a discriminatory effect on minorities.
Some conservatives now want the Supreme Court to rule that anyone
challenging a law under Section 2 would have to prove that lawmakers
intended to discriminate. That’s a much higher burden of proof required
to strike down a law.
In
the meantime, Ringhand lamented that voters are displaying diminishing
confidence that any of the authorities involved are truly interested in
fairness.
“I’m
not sure there’s a great deal of trust in any of our decision makers
right now, whether that’s legislators or state judges or federal judges
or secretaries of state,” she said. “Trust is at an all-time low.”
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