A (rare) thoughtful piece on this polarizing subject: A Better Way to Flight Critical Race Theory. The author maintains that while CRT should not be used to indoctrinate students, it is wrong to ban teaching about it. Students should be exposed to CRT, like other controversial concepts, in order to subject it to scrutiny and analysis and allow them to draw their own conclusions. His take: “As someone who has spent decades working in the communities that CRT advocates claim to care about, in my view it offers no solution to unsafe neighborhoods, failing schools, or rising crime and homicide rates. Instead, it offers a cocktail of victimhood and hopelessness that never has nor will fix the inequities it claims to address, while lining the pockets of professors and consultants who push it in our institutions. Properly educated students will be able to see this for themselves.”
Month: July 2021
More Unfounded Angst Over State Voting Rules
The Supreme Court recently upheld the legality of two Arizona voting rules that opponents charged violated the Voting Rights Act. This result is no surprise; the case against the rules was weak on the facts and law. Challenges to voting rules enacted by Georgia (and perhaps other States) should fare no better since their rules are likewise a far cry from the “voter-suppression”/”Jim Crow” measures portrayed by critics. In any event, these new rules figure to have little if any practical effect on voter turnout. Those concerned over election processes would do better to focus on how votes are counted rather than how they are cast.
In Brnovich v. Democratic National Committee, decided last week, the Supreme Court rejected challenges to two Arizona election law rules brought under section 2 of the federal Voting Rights Act (VRA). This 6-3 decision unleashed predictable liberal outrage. Democratic politicians, including President Biden, as well as left-leaning media outlets, pundits, and law professors accused the Court of further gutting the VRA and abetting racist voter suppression. Justice Kagan wrote a fiery dissent much to the same effect. A look at what Brnovich actually involves, however, refutes these accusations.
Section 2 of the VRA prohibits States from imposing voting requirements in a way that results in denying or abridging the right of any citizen to vote on account of race or color. It provides that a violation is established if “based on the totality of circumstances” voting processes are not “equally open” to minority voters. One of the Arizona rules challenged in Brnovich disqualified the votes of individuals who cast their ballots in the wrong voting precinct. The other banned (with certain exceptions) the practice sometimes called “ballot harvesting” whereby third persons collect ballots from voters and submit them to election officials.
Regarding the first rule, the evidence in Brnovich showed that the vast majority of Arizona voters across all racial and ethnic categories (over 98%) cast their ballots in the right precinct. Among the few who did not, there was a disparity of one-half of one percent between minority and non-minority voters. The Court concluded that since the system worked for almost all voters and resulted in only a small racial disparity among a small number of out-of-precinct voters, it was not unequally open in violation of the VRA. The Court also described various steps Arizona took to inform voters of their correct precinct and noted that Arizona law did not even require voting by specific precinct. Rather, voters had the option of voting early by mail or, in some counties, voting in person at voting centers that were not tied to individual precincts.
Regarding the second rule, the challengers offered no direct evidence that the ban on third-person ballot collection had any disparate impact on minority voters. There was anecdotal evidence that minority voters had used third-person collection more than non-minorities in the past—particularly Native American voters with limited access to mailboxes. However, this appeared to be more a matter of convenience than necessity. The Court also observed that exceptions to the third-person collection ban existed for a voter’s family members, household members, and caregivers. Additionally, Arizona permitted 27 days of no-excuses voting by mail in advance of elections. Finally, the Court found ample evidence to support the finding by the federal district court judge, after conducting a 10-day trial, that the third-person collection ban was not enacted with a racially discriminatory intent. The Court recognized that the ban served important public interests in discouraging fraud as well as pressure and intimidation of voters.
Justice Kagan’s lengthy dissent in Brnovich covered many topics but strained to explain how the Arizona rules could rise to the level of VRA violations. They are facially non-discriminatory and she did not contend that they were enacted with discriminatory intent; they serve legitimate interests in promoting the integrity of elections; and any racial disparities they cause are modest or speculative. The majority opinion observes that if provisions like these run afoul of the VRA, so could just about any State voting rule.
Even voting rights activists recognized the weakness of the challenge to the Arizona rules. One described the rules as “relatively tame” and noted that some advocates were unhappy that the DNC pursued this case aggressively. Notably, the Biden Justice Department submitted a letter informing the Supreme Court that it “[did] not disagree with the conclusion” that neither rule violated the VRA. (President Biden’s condemnation of Brnovich is thus at odds with his own lawyers.)
Brnovich will have a major impact on challenges to voting rules recently enacted by other States such as Georgia. The Court sensibly observed that any act of voting necessarily imposes some burden on voters and that mere inconvenience cannot be enough to violate the VRA. It noted that most State voting rules in place at the time the VRA was enacted required voters to appear in person on a single election day at a designated polling place; voting by mail was allowed only in limited circumstances. The Court expressed doubt that in enacting the VRA, “Congress intended to uproot facially neutral time, place, and manner regulations that have a long pedigree or are in widespread use in the United States.”
Most States that have recently amended their election laws, including Arizona and Georgia, still have voting regimes that are more liberal than those widely used when the VRA was enacted. For the most part, their recent changes tighten up voter-friendly flexibilities put in place after the VRA instead of imposing novel restrictions on voting.
Brnovich also debunked the rote contention by critics that State efforts to prevent fraud and enhance the integrity of elections are essentially unjustifiable absent proof of existing widespread fraud. The Court affirmed that preventing fraud is a “strong and entirely legitimate state interest” and added the common-sense observation that “it should go without saying that a State may take action to prevent election fraud without waiting for it to occur and be detected within its own borders.”
The Justice Department’s challenge to recently enacted Georgia voting rule changes is a prime example of a lawsuit that was problematic before Brnovich and is now almost sure to fail. Like Arizona, the voting rule changes made by Georgia are generally unremarkable and similar to those of many States. Bizarrely, the Justice Department rushed to file this lawsuit just days before the Brnovich decision, which it knew was imminent, probably anticipating its outcome.
In addition to stretching the VRA, challengers to recently enacted State election laws who focus on voting rules are barking up the wrong tree. Studies suggest that changes to voting rules (unless truly draconian) have little if any effect on voter turnout. Citizens who are motivated to vote will continue to do so, adapting to the changes and accepting any added inconvenience. Conversely, inconvenience is not a major reason why chronic non-voters fail to show up at the polls; the main reasons are cynicism and apathy. (See here and here.) A more legitimate potential concern than how votes are cast is how they are counted. Several States have made election law changes that could subject vote-tabulation processes to greater political influence. Those who sincerely care about ensuring that our democracy works would do better to train their sights on this aspect of the new laws.