The Supreme Court Tramples on Voting Rights…Again
The Court’s latest ruling is very bad news for the Department of Justice’s move to challenge Georgia’s new restrictive voting laws.
The Supreme Court has struck another blow against voting rights, by upholding two Arizona laws that make it harder for minority Americans to cast their ballots.
The Court’s ruling in Brnovich v. Democratic National Committee, handed down on July 1, is very bad news for the Department of Justice’s lawsuit challenging Georgia’s new laws restricting voters. Justice Alito wrote the majority opinion for the 6–3 decision, which reflected the conservative-liberal divide on the Court.
In Brnovich the Court leaned over backwards to defend Arizona’s right to prevent electoral fraud, rather than protect voters’ rights. In effect, the majority put a higher value on “states’ rights” than on civil rights. This Court has reversed the priorities that Congress set in enacting the Voting Rights Act of 1965, which mandated Federal intervention to stop states from abusing their rights in conducting elections.
Furthermore, the majority opinion ignored legal precedent and key facts, in a shocking display of sophistry and intellectual dishonesty, as Justice Elena Kagan showed in her brilliant dissent.
So far this year, 14 states have enacted laws that are designed to suppress minority voters. The practical result of the Brnovich decision is that lower Federal courts probably won’t be able to block such abuses of political power. The Supreme Court has tied their hands.
We have a very dangerous situation for American democracy: a Republican Party that is hell-bent on disenfranchising minority voters and a highly partisan Supreme Court that is aiding and abetting those tactics.
Supreme Court’s War On The Voting Rights Act
It’s important to view the Brnovich decision in the context of this Court’s approach to voting rights.
The Brnovich case was the Court’s second major attack on the Voting Rights Act of 1965. That statute, a key victory for the civil rights movement, restored Black Americans’ right to vote after decades of suppression by local officials.
The Act’s crucial provision, Section 5, required states with a history of racist voting practices to get approval from the DOJ before they could adopt new laws or procedures that might affect minority voters. The preclearance requirement worked well and generally prevented state officials from adopting laws or practices that would restrict Black Americans’ ability to vote.
But in 2013, the Supreme Court gutted Section 5, in Shelby County v. Holder — even though Congress had recently reauthorized the law, in 2006, for another 25 years. The Court’s rationale was that racism was basically no longer a problem and that Congress had to update the VRA’s formula for determining if discrimination still occurred.
That was an astounding move, because the Court should defer to Congress on findings of fact. The Court also ignored warnings that racist voting barriers had diminished precisely because of Section 5. All too predictably, several Southern states adopted discriminatory laws within days of the Court’s ruling.
If Section 5 were still in effect, the DOJ could have blocked the waves of discriminatory voting laws that have been rushed through state legislatures since the 2020 election.
The VRA’s Second Line Of Defense: Section 2
The Shelby decision dismantled the VRA’s most important firewall, but another, weaker form of protection remained. This is the provision that the Court severely undermined in the Brnovich case.
Under the VRA’s Section 2, a party can bring a legal action to challenge a law or regulation that hampers the ability of minority voters to cast their ballots. That’s after the fact, of course, rather than a pre-clearance review, and the litigants have to prove their case in court. That can be difficult, as judges have to evaluate the possible effect of a law.
Still, Section 2 was the only remaining line of defense under the Voting Rights Act.
Arizona’s Sneak Attack On Voting Rights
Compared to many other states, Arizona traditionally had reasonably fair voting laws. However, in 2016, Arizona passed two new laws that seemed neutral on the surface but were designed to make it harder for minority voters to cast their ballots.
Under the new statutes, election officials have to reject, in its entirety, any ballot that was cast at the wrong polling station, a so-called “out of precinct” ballot.
The state also banned “ballot collection” or “ballot harvesting” by paid third parties. In this arrangement, an individual gathers ballots from voters, in some cases many voters, and delivers them to a polling station or post office, often for a fee. At times party officials have performed this role.
The Democratic National Committee sued the Arizona Secretary of State, Mark Brnovich, arguing that these provisions had a disproportionate impact on minority voters and therefore violated Section 2.
Arizona argued that the laws were justified on the following grounds:
1. The state wanted to ensure that citizens voted at the correct polling stations, to avoid excessive burdens on local officials and avoid confusion on Election Day.
2. The state banned “ballot harvesting” because it wanted to prevent voting fraud.
The Supreme Court agreed with Arizona’s rationale and upheld the two statutes. To accomplish that objective, the Court interpreted Section 2 very narrowly.
What Does Section 2 Actually Say?
Before we consider the Court’s opinion, let’s take a look at the law itself.
Section 2(a) prohibits a state from imposing a voting standard or procedure that “results in a denial or abridgement of the right of any citizen… to vote on account of race or color…” (Emphasis added)
The new law triggered litigation, of course, as various state officials fought it. So in 1982, 17 years after the Act was passed, Congress amended the law to broaden its reach.
Congress added a “totality of circumstances” test to Section 2 that judges could use to determine whether or not a law or practice restricted minority citizens’ access to the political process and their ability to vote. Under Section 2 (b) a violation occurs if the political process is not “equally open to participation” by a protected group of citizens and they have “less opportunity” than other groups to elect their representatives.
The conservative majority and the liberal dissenters disagreed fundamentally on what the “totality of the circumstances” test means. The two groups of Justices also treated the facts of the case very differently.
The Court’s Tortured Rationale
The Supreme Court adopted a tortured rationale for upholding two Arizona laws that reduce minority voters’ ability to cast their ballots, in its Brnovich v. National Democratic Committee decision. (In Part 1 we discussed the background for this case, including this Court’s previous decision on the Voting Rights of 1965).
In Brnovich, the Supreme Court indicated that courts should defer to state legislatures because of their “strong interest” in preventing fraud and otherwise maintaining election standards. The Court did not use the politically charged phrase “election integrity,” but that was clearly a key factor in its decision.
The Court was prepared to assume that Arizona lawmakers were acting in good faith, unless the plaintiffs could show widespread, egregious violations of minority voters’ rights. The Court repeated, several times, that the statutes were “facially neutral”, as though that were an important factor.
To buttress its position, the Court interpreted the “totality of circumstances” test to mean that courts should view how the two statutes operate within the overall context of Arizona’s voting laws and procedures. The majority emphasized that citizens in Arizona have several options for voting, including mail-in ballots and early voting.
(Some voting rights advocates had opposed the Democratic National Committee’s decision to file the lawsuit, fearing it was a somewhat weak case. They were concerned for two reasons: Arizona’s total framework was relatively reasonable, and the Roberts Supreme Court was obviously not inclined to protect voting rights.)
The Court conceded that the two statutes being challenged might have some impact on minority voters. However, they concluded, the effect was likely to be minimal, because Arizona made it relatively easy to vote in general.
In that regard, the Court noted that the “out of precinct” rule affected “only” 1% of minority voters. The Court stated that no plaintiffs had alleged that the ban on ballot harvesting/collection would seriously inconvenience them.
The majority opinion dismissed Justice Kagan’s dissent, in rather snide terms, stating that she was only concerned with the possible impact on minority voters and that her approach would nullify most state voting laws.
Kagan’s Brilliant Dissent
In a searing dissent, Justice Kagan exposed the fallacies in the majority’s opinion. She wrote extensively about the legislative history of the Voting Rights Act, pointing out that American lawmakers had always used claims about election fraud as a pretext for disenfranchising voters…whether they were Irish, Italian, Black Americans or other marginal groups. Consequently, Congress was keenly aware of states’ attempts to restrict voting, so it enacted a broad statute to allow Federal intervention.
Justice Kagan noted that there was no evidence of widespread voting fraud in Arizona, or in other states, for that matter. In particular, ballot collection had not caused any fraud issues in the state.
Kagan sharply disagreed with the majority’s approach to the “totality of circumstances” test. Citing precedent and the legislative history behind the 1982 amendment, Kagan emphasized that courts should look at how a specific law or procedure (the one under review) operated with the facts on the ground.
In other words, a court should not just look at the words in the statute or try to infer the lawmakers’ intent (as the majority had). The court should consider whether the law in question was likely, as a practical matter, to deprive minorities of equal opportunities to cast their ballots.
Furthermore, Kagan wrote, Congress was not willing to tolerate “any” law that put minority voters at a disadvantage. So even if Arizona’s overall framework was fairly open and fair, that did not justify upholding the two statutes if they put an unusual burden on minority voters.
Finally, the Justice noted that Section 2 prevented states from abridging voters’ rights, that is to say, curtailing them. An outright denial is not necessary to violate the law.
The Court Fudged the Facts
The majority did not mention several crucial facts, which Kagan highlighted in her dissent.
Precinct ballots. Arizona’s rejection rate for “out of precinct” ballots was off the charts. The state’s rejection rate was 11 times that of the next closest state, Washington. Although the absolute rate was low, Kagan noted that the number of ballots discarded could have affected the results of some elections.
Election officials changed the locations for polling stations at an unusually high rate. The frequent changes left many voters, especially minority voters, confused about where they should vote.
The ballots for Black Americans, Hispanics and Native Americans were tossed at much higher rates than those of white voters.
Under Arizona’s law, an election official had to discard the ballot in its entirety. This nullified a citizen’s choices for all candidates, even if they were running for statewide or national office rather than a local race. Kagan found that very suspicious, since an out-of-precinct voter was still an Arizona resident. She noted that many states still count such ballots as valid for state and national races.
Ballot collection. Many Native Americans live on isolated reservations that do not have post offices or polling stations. In many cases, the nearest town with a post office is a one-to-two hour drive away. In Arizona, only 18% of Native Americans have home delivery of mail.
Furthermore, in many communities, 25%-50% of Native Americans do not own a car. As a result, many of them rely on third parties to pick up and deliver their ballots for them.
The federal district court found that the Arizona statute would pose a unique burden for some Native Americans, Kagan noted.
These facts were all highly relevant, Kagan argued, because they showed that the two laws reduced minority voters’ ability to participate in the political process…and therefore violated Section 2.
Furthermore, Kagan noted, elections are often won by thin margins — a factor that the majority had ignored in its discussion.
The Supreme Court has not yet completely destroyed Section 2, but it has gravely weakened the provision.
The majority made the appropriate noises in Brnovich about protecting the rights of minority voters, but this was mere window dressing. In effect, the Court has given a green light to state Republican lawmakers who are ramming extraordinarily restrictive voting laws through their legislatures.
Large segments of the Republican Party want to establish one-party rule in the states they control and, eventually, the whole country. The U.S. could become a banana republic within a few years.
How can Democrats save our democracy? They should pass some form of voting rights law, a stripped-down version of the For The People Act. They should mount massive voter-registration drives in the battleground states. Democrats should adopt reasonable policies that will attract moderate Republicans and independents.
Let’s hope the Democrats succeed. If not, a tyrannical minority may destroy the oldest democracy in the world…and soon.