Lawmakers, not judges, should make election law — LJC Blog - Liberty Justice Center

Lawmakers, not judges, should make election law — LJC Blog

Cooke v. Illinois Board of Elections challenges improper use of campaign funds

In an amicus brief filed on December 7, 2020, Liberty Justice Center Managing Attorney Daniel Suhr wrote to encourage the Supreme Court to “adopt a clear, bright-line rule based on the text of Section 2” to “bind lower court judges so that state executives and legislators can act with confidence when they update election administration codes.”

Brnovich v. Democratic National Committee, a case being considered by the U.S. Supreme Court, concerns whether two Arizona election laws violate Section 2 of the Voting Rights Act of 1965 which bans voting laws that discriminate based on race, ethnic group, or language. Among Arizona’s election integrity laws includes an “out-of-precinct policy” which discount ballots cast in the wrong precinct and H.B. 2023 which criminalizes the collection and delivery of ballots by a third party. The Democratic National Committee believes these rules disproportionately and intentionally discriminate against minority voters while the Arizona legislature claims the rules are fair and ensure election integrity.

As evidence for this requisite, Suhr pointed to the arduous court saga involving Wisconsin’s Act 23 which mandates voters present an ID to cast their ballots. Despite minority communities having higher voter registration and turnout than white voters even after the passage of Act 23, the measure was held up on Section 2 challenges similar to those being asserted in Arizona.  As happened in Wisconsin, “judges still strike down the state’s election laws under Section 2 using a non-textual approach that puts legitimate laws on hold through years of costly, protracted litigation, before ultimate vindication on appeal.”

This back-and-forth inconsistent process in Wisconsin illustrates the necessity for clearer rules surrounding Section 2, “[f]or [election workers], for the policymakers who shape the laws they administer, and ultimately for the voters themselves who need confidence in their elections.”

Liberty Justice Center’s amicus brief is available here: Brnovich v. Democratic National Committee.

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