Articles

WHY GEORGIA’S VOTING RIGHTS LEGISLATION VIOLATES THE FIRST AMENDMENT
Aaliyah Milson

Voting rights jurisprudence in the United States has faced substantial changes since the adoption of the original Constitution, when only white male property owners could vote. The Constitution does not explicitly provide protection of the right to vote. Hence, Black and other minority voters had been denied the right to vote, and once they were allowed to vote, they faced restrictions in voting. Even with the passage of the Fourteenth and Fifteenth Amendments of the Constitution, Black voters still faced disenfranchisement. It was not until the passage of the Voting Rights Act of 1965 that notable progress in Black voter participation began to develop.

Yet, this development has not stopped legislators and other state actors from introducing restrictive voting rights bills. At issue in this commentary is Georgia’s recently enacted statute known as the Election Integrity Act of 2021 (“SB202”). The Department of Justice has filed a complaint against the State of Georgia, alleging that the law is racially discriminatory and violates Section 2 of the Voting Rights Act, Section 10301 of Title 52 of the U.S. Code, and the Fourteenth and Fifteenth Amendments of the United States Constitution.

This commentary seeks to explore the possibility of challenging SB202 under the First Amendment Freedom of Speech Clause. While the complaint brought by the Justice Department has merit, it was a missed opportunity to have the Court determine that voting is speech. If the Court were to hold that voting constitutes free speech, then it would follow that restrictive voting legislation violates the First Amendment. This commentary will argue that although the Court has never held that voting constitutes speech, the Court has left the door open through its decisions, for example in Buckley v. Valeo, that this is possible.

BRNOVICH V. DEMOCRATIC NATIONAL COMMITTEE: SAME STORY, NEW SECTION
Joseph Adams

After historic voter turnout rates in the 2020 elections, state legislatures across the country ushered in a wave of voter suppression laws. From January 1, 2021, to September 27, 2021, nineteen states passed at least thirty-three restrictive voting laws, limiting access to the ballot box in a multitude of ways. It is not an uncommon trend. Since 2013, after the United States Supreme Court rendered Section 5 of the Voting Rights Act (“VRA”) of 1965 inoperable in Shelby County v. Holder, states have been able to reengage in legislative efforts to limit minority access to voting. As a result, many commentators observed that Section 2 was the only provision of the VRA that could provide a substantive check on discriminatory voting laws.

Section 2’s broad prohibition on “voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups” had been primarily utilized in vote dilution claims. Without the protections of Section 5, however, the provision was regarded as the only tool left in the VRA for vote denial claims. But, in Brnovich v. Democratic National Committee, the Supreme Court’s Republican-appointed majority dealt another blow to the VRA by imposing new “guideposts” for courts to follow when evaluating Section 2 claims. The guideposts articulated by Justice Alito significantly heighten a plaintiff’s evidentiary burden while also lowering the state’s burden to show a compelling interest to restrict voting opportunities. By crafting the extratextual guideposts framework for Section 2 claims, the Supreme Court’s decision in Brnovich, and Republican lawmakers’ subsequent efforts to block legislation that would restore the section, represents another chapter in the saga of Republican-appointed Justices narrowing voter protections and Republican lawmakers blocking voting rights legislation due to misplaced fears of voter fraud.