Andrew D. Hurwitz
Recent challenges to Arizona legislation impacting elections have typically invoked the federal Voting Rights Act (“VRA”) of 1965. But a trilogy of Supreme Court decisions has diminished the sweep of that legislation. In Shelby County v. Holder, the Court struck down the preclearance provisions of Section 5 of the VRA, which subjected changes in electoral procedures in states with a history of discrimination, including Arizona, to review by the Justice Department. In Crawford v. Marion County Election Board, the Court upheld against a Section 2 VRA attack a state ID requirement, holding that even if it affected protected populations disproportionately, voting necessarily requires some effort and compliance with some rules, and the concept of a voting system that is “equally open” and that furnishes equal “opportunity” to cast a ballot must tolerate the “usual burdens of voting.” And in Brnovich v. Democratic National Committee, the Court held that disparate impact on minorities of state elections laws alone did not violate Section 2 of the VRA.