In this post I’m taking a break from book reviews and making one of my occasional forays into reviewing decisions by the US Supreme Court. (Disclaimer: I’m not a lawyer and I don’t have any formal legal training. The opinions expressed here are my own.)
On July 1, 2021, the Supreme Court handed down its decisions in a case called Brnovich v. Democratic National Committee which could have a dramatic effect on US elections. The case is about whether a couple of provisions in Arizona’s voting laws violate Section 2 of the federal Voting Rights Act (VRA).
The first provision concerns how ballots are handled when they are cast in the wrong precinct. Arizona’s “out of precinct” regulation requires the entire ballot to be thrown out even if the voter was eligible to vote for president or governor – national or statewide offices – where precinct doesn’t matter.
The second provision makes it a crime for anyone other than a family member, caregiver, postal worker, or election official to collect and deliver another person’s ballot.
The DNC argued that both these provisions disproportionately impact minority voters in violation of Section 2 of the VRA. Section 2 says, in part,
“No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color …”
African American, Native American, and Hispanic voters in Arizona were about twice as likely as white voters to have their ballots discarded by the out of precinct rule. And Native American and Hispanic voters are more likely to live far from post offices or election offices and often rely on others to deliver their ballots.
Justice Samuel Alito, writing for the 6-3 conservative majority, determined that Arizona’s laws do not violate the Voting Rights Act. You can read the Court’s full written decision here. If you’ve never read a Supreme Court decision before, they really aren’t that difficult to follow. A few years ago I wrote a guide to reading them which you can find here.
I won’t go into a detailed analysis of the case. Many others have already done so including this report from CNN, this post from former SCOTUSBlog reporter Amy Howe, and this episode from the Strict Scrutiny podcast.
A Tarnished History
What I want to point out is that this decision is very much consistent with the Supreme Court’s long history of narrowing and undermining voting rights in the US.
Justice Elena Kagan in her dissent in Brnovich traces out much of this tarnished history. And author Adam Cohen has written about it in his book Supreme Inequality which I reviewed here.
I’ll give a brief summary.
Back in 1857, the Supreme Court decided in Dred Scott v. Sandford that the US Constitution did not apply to African Americas, whether slaves or free. Constitutional rights, including the right to vote, did not apply to them.
In 1870, after the Civil War, the US ratified the 15th Amendment to the Constitution which says,
“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
But voting equality was short-lived. Many States, especially formerly Confederate States in the South, enacted a vast array of laws that while seemingly neutral had the effect of preventing Blacks, Latinos and Native Americans from voting. These laws and regulations included poll taxes, literacy tests, and property qualifications. This Washington Post article provides a good summary of these discriminatory tactics.
Finally in 1965, after civil rights marches in Selma, Alabama, Congress passed the Voting Rights Act which, in the words of President Johnson, was crafted to bring about “the end of discrimination in voting in America.”
For over forty years the VRA worked well. In particular, Section 5 of the VRA provided the legal framework for rolling back discriminatory State-level voting regulations. It empowered the United States Department of Justice to review or “pre-clear” any new voting rules proposed by States with a history of voter suppression, and to block them if they would have discriminatory effects. That all came to an end in 2013 in a case called Shelby County, Alabama v. Holder, in which Chief Justice John Roberts, writing here for the majority, struck down Section 5 of the VRA. The immediate and entirely predictable result was a flood of new restrictions on voting rights in southern States and elsewhere, such as stricter voter ID laws and voter roll purges. (Roberts has a well-known hostility to the VRA.)
Now in Brnovich the Court continues its assault on the VRA by dramatically weakening Section 2.
Essentially what the Court has done here is tilt the playing field dramatically in favor of State governments. It imposes a very high burden on plaintiffs – people suing the government – to prove that a voting regulation has a discriminatory impact, while at the same time making it trivially easy for governments to assert, without any proof or evidence at all, that such restrictions are justified in order to prevent voter fraud or intimidation.
A majority of the Court effectively supports the false narrative started by Donald Trump that baseless claims about election fraud justify new voting restrictions to ensure “election integrity.”
Incidentally, the Court’s ambivalence to a properly functioning democracy in America isn’t limited to undermining racial equality in voting. In 2019, in a case called Rucho v. Common Cause, the Court decided 5-4 that it would not make any decisions in cases about partisan gerrymandering – the drawing of electoral boundaries to favor one party or another. The Court walked away from the problem ruling that partisan gerrymandering is “non-justiciable,” not a matter for the Court to decide. You can read that decision here.
For over 150 years, the US Supreme Court has taken a narrow view, I’d even say a dim view, of voting rights. It doesn’t have to. The Court could adopt an expansive view, one that sees the right to vote as foundational to every other constitutional right, a view that understands that our democracy is healthiest when as many citizens as possible participate in it. The Court’s narrow view undermines the very democratic system to which the Court owes its existence.
Expect more voter suppression laws. Since the 2020 election, many Republican controlled states have rushed to enact new restrictions on voting, and new laws that limit the independence of election officials. After Brnovich there will be even more. And they will be difficult if not impossible to defeat in court.
America badly needs new legislation to shore up voting rights. But proposed laws such as the John Lewis Voting Rights Act stand almost no chance of getting past a Republican filibuster in the Senate.
It’s a shame to say this on July 4th, but the goal of ending discrimination in voting in America is still very far off.