There was a revealing moment during the oral argument in Brnovich v. Democratic National Committee, which the Supreme Court decided Thursday, the last day of rulings for its term. Justice Amy Coney Barrett asked Michael Carvin, a lawyer for the GOP, why the Arizona Republican Party cared about defending specific voting laws that, for all intents and purposes, had no party label attached to them. His answer was admirable for its candor. “Because it puts us at a competitive disadvantage relative to Democrats,” Carvin told the justices during the remote hearing in March. “Politics is a zero-sum game, and every extra vote they get through unlawful interpretations of Section 2 hurts us.”
As if taking that statement at face value, the six Republican appointees on the Supreme Court ruled for the GOP on Thursday, upholding a pair of Arizona voting rules that Democrats in the state challenged in 2016 as violations of Section 2 the Voting Rights Act of 1965. Their lawsuit alleged that Arizona’s refusal to count Election Day ballots cast in precincts other than where a voter lives and a separate prohibition on collecting and submitting ballots on behalf of people who couldn’t vote in person—say, elderly voters or those with disabilities—put a heavy burden on Black, Latino, and Native American voters. In a 6-to-3 opinion by Justice Samuel Alito, the Supreme Court rejected those claims resoundingly—as in, neither restriction disproportionately affects minority voters. And the one provision that had been challenged as racist outright, the one dealing with ballot collection, Alito said, is not so.
Section 2 of the Voting Rights Act of 1965, though broad, isn’t the law’s crown jewel—that distinction goes to the section the Supreme Court invalidated in 2013 in Shelby County v. Holder, that nadir of constitutional law that rendered meaningless the federal government’s power to supervise states with a history of voter disenfranchisement. Chief Justice John Roberts’s ignominious blow to the law, a lifetime in the making, resulted in a near-immediate wave of voter suppression in states with a history of disenfranchisement—on the very day that decision came down, Texas rushed to move ahead with a voter ID law that it otherwise wouldn’t have been able to enforce. And so, in a sense, post–Shelby County, Section 2 of the act is all there is to prevent discrimination in voting, leaving it to judges, rather than the Justice Department, to decide whether voting restrictions discriminate on the basis of race. Or as Justice Elena Kagan put it in her forceful dissent in Brnovich, “Section 2 is what voters have left.”
But the Supreme Court sapped much of Section 2’s juice in Brnovich by erecting a complicated and not exactly intuitive list of “important circumstances” that judges must take into consideration when weighing challenges to voting rules. Alito’s multifactor test goes on for a few pages and runs the gamut: the “size” of the burden on voters, whatever that means; whether “a challenged rule has a long pedigree or is in widespread use in the United States”; how significantly different racial groups are affected by a voting rule; whether a state provides “other available means” of voting outside of the challenged restrictions; and the strength of the justification for the voting restriction—such as preventing fraud, which Alito describes as a “strong and entirely legitimate state interest.”
Up until Brnovich, the Supreme Court had never determined how Section 2 of the Voting Rights Act applies to so-called “generally applicable time, place, or manner voting rules”—the kinds of restrictions that Republican-led legislatures in states like Georgia have passed in recent months, fueled by Donald Trump’s dangerous lie that Joe Biden isn’t the rightful president of the United States. But you wouldn’t know, reading from Alito’s opinion, that it’s even on his mind how the Supreme Court’s pronouncement in Brnovich will very much play a role in all current and future cases dealing with voting rights in the United States—including the one filed by Attorney General Merrick Garland’s Justice Department last week against Georgia, which accused the state of Section 2 violations and didn’t hide that Georgia was the epicenter of “an unprecedented campaign to overturn the results of a presidential election.”
Those efforts, thanks to Brnovich, now seem doomed to fail. Kagan, joined by justices Stephen Breyer and Sonia Sotomayor, didn’t shy away from these realities on the ground, including Georgia’s own recent ban on “handing out food or water to voters standing in line,” which she specifically called out. In assessing the illegality of Arizona’s out-of-precinct ban, which falls hardest on minorities, by a rate of about 2-to-1 compared to white voters, she even hearkened to the most recent election, in which Biden narrowly won Arizona. “Consider the number of votes separating the two presidential candidates in the most recent election: 10,457,” Kagan pointed out. “That is fewer votes than Arizona discarded under the out-of-precinct policy in two of the prior three presidential elections.”
In her view, the text of Section 2 and its history already do all the work Congress intended with its passage, and so there’s no need to articulate, or to invent out of whole cloth, as the Supreme Court does, a list of factors that are nowhere in the law. “Think of the majority’s list as a set of extra-textual restrictions on Section 2—methods of counteracting the law Congress actually drafted to achieve the purposes Congress thought ‘important,’” she wrote. “The list—not a test, the majority hastens to assure us, with delusions of modesty—stacks the deck against minority citizens’ voting rights,” she added. “Never mind that Congress drafted a statute to protect those rights—to prohibit any number of schemes the majority’s non-test test makes it possible to save.” In other words, Americans have every right to expect that this latest pronouncement will all but bless this next wave of voter suppression happening in the states—including in the very state that’s now desperately doing Trump’s bidding after Biden legitimately won its electoral votes. The ruling also drops as Senate Democrats have so far failed to pass legislation that would help stave off the Republican assault on voting rights.
I didn’t expect, after Shelby County, that the Supreme Court would be capable of a sequel. But Brnovich is that case, even if Section 2, at least in theory, remains on the books. Roberts, after all the flak he caught in 2013, may have been wise to assign the decision to Alito, who tends to bristle at any suggestion that Republican legislators act with the intent to discriminate or engage in shenanigans and, in this latest ruling, decries as “insulting” that anyone would “suggest that they are mere dupes or tools.” But as Kagan reminds us, the Voting Rights Act isn’t just any law, but one that sought to confront this nation’s original sin by granting “every American, of every race, an equal chance to participate in our democracy.” If there’s a federal law that should countermand any two-bit attempts to make it harder to vote, it should be this one. “That law, of all laws, deserves the sweep and power Congress gave it,” Kagan wrote. “That law, of all laws, should not be diminished by this Court.”
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