On the last day of its current term, the Supreme Court under the leadership of Chief Justice John Roberts continued its war on voting rights with its decision in Brnovich v. Democratic National Committee. And though Justice Samuel Alito’s opinion attempted to strike a modest tone while giving states more leeway to make it harder for people of color to vote, it is clear that this court will smile upon even the worst vote suppression efforts being undertaken by Republican legislatures in the wake of former President Donald Trump’s false claims that the 2020 election was stolen.
And while the Arizona law upheld in this particular case isn’t the most egregious set of vote suppression standards that states have enacted in the last decade, Alito’s opinion makes it clear that any of the challenges to more recent and more stringent voter suppression measures enacted in states — like the one against Georgia being mounted by the Department of Justice — are unlikely to succeed.
Congress, however, enacted legislation decades ago to stop exactly the kind of discrimination occurring in Arizona and which will likely occur in Georgia as a result of its new law: The Voting Rights Act. And two different provisions — Section 4 and Section 2 — should have forced the court to stop these states.
But in its infamous 2013 decision Shelby County v. Holder, the Supreme Court struck down Section 4 of the Voting Rights Act, which had required states, counties and municipalities with a history of disenfranchising voters on the basis of race to submit changes to their election laws to the Department of Justice. Congress enacted this particular provision because, in the post-Reconstruction Era, states had proven remarkably ingenious at finding ways of disenfranchising racial minorities that were formally race-neutral.
Shelby is starting to look like a bait-and-switch scam.
But — and without any basis in the text of the Constitution — the court argued that because so much progress had been made on voting rights in the years since the Voting Rights Act had passed, the strong measures taken in Section 4 were obsolete and beyond Congress’ authority.
In his majority opinion in Shelby, Roberts noted that, while Section 4 of the Voting Rights Act had been struck down, Section 2 — which made discriminatory election laws illegal — was “permanent” and “applies nationwide.” So, he said, while states would no longer have discriminatory election laws stopped from going into effect pre-emptively, such laws could still be challenged under Section 2.
The Arizona law was challenged under Section 2 and today’s decision says that no longer applies; Shelby is starting to look like a bait-and-switch scam.
Post-Shelby, Republican state legislatures wasted little time in demonstrating that Roberts was being disingenuous in asserting that racial discrimination in election law was a thing of the past. Multiple states enacted restrictions on the right to vote — and targeting nonwhite voters — immediately after the court’s decision came down. In North Carolina, for example, legislators asked for data about racial patterns in voting and then enacted a suite of vote suppression measures based on the information they received;, a unanimous opinion by the 4th Circuit Court of Appeals found they targeted African American voters “with almost surgical precision.”
Admittedly, the Arizona voter suppression measures at issue in this case are not among the most egregious of those passed in the last decade; given the unfavorable makeup of the current Supreme Court, the decision of the Democratic National Committee to bring this suit was probably a tactical mistake.
Thursday’s decision is a betrayal of the fundamental purposes of the Voting Rights Act — which was the most important civil rights legislation passed since Reconstruction.
But, as Justice Elena Kagan pointed out in her dissent, both of the challenged provisions violate Section 2. Arizona’s has unusually harsh restriction on people who vote in the wrong precinct, tossing their ballots immediately — a third of the ballots thrown out for this reason nationally were in Arizona — “results in Hispanic and African American voters’ ballots being thrown out at a statistically higher rate than those of whites.” And the state’s ban on absentee ballot collection “makes voting meaningfully more difficult for Native American citizens than for others.”
Congress enacted the Voting Rights Act precisely to stop this kind of discrimination: while one can say that other states have enacted worse voter suppression measures, Section 2 does not only ban the worst practices. Using broad language, it also bans all racially discriminatory restrictions on the right to vote and it specially bans practices with a discriminatory effect — whether legislatures enacted them with a discriminatory purpose or not.
As Kagan puts it, the Supreme Court’s opinion in Thursday’s case “flouts” the choices made by Congress “with abandon” creating “a set of extratextual exceptions and considerations to sap the act’s strength, and to save laws like Arizona’s.” Essentially, Kagan correctly notes that the court’s majority has now rewritten the Voting Rights Act because it politically believes that Congress should not have gone as far in constraining the ability of states to restrict the right to vote — but not because there is a constitutional prohibition on them doing so.
It’s not a very attractive ideological position for a group of judges who claim the mantle of textualism, but more to the point: Congress gets to make that call. The Supreme Court’s job is to apply (or judge) the statute that Congress enacted, not the one it would have preferred Congress to have enacted.
And the fact that other states have enacted worse voter suppression measures should not save Arizona’s — but the court’s holding does exactly that.
Some may take cold comfort from the fact that the court did not explicitly strike down Section 2 in its entirety, or determine the legality of suppression measures different than the ones enacted by Arizona.
But make no mistake: despite being superficially narrow, Alito’s opinion makes clear that the court will be a hostile audience to any future Section 2 challenge. With one Republican legislature after another now making it harder for nonwhite citizens to vote, Thursday’s decision is a betrayal of the fundamental purposes of the Voting Rights Act — which was the most important civil rights legislation passed since Reconstruction. Sadly, the Roberts court has repeatedly decided to reduce it to a near legal nothingness, because voter suppression has become a core value of the Republican Party.