The Supreme Court is Trampling On Voting Rights….Again: Part 1

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. 

 In Part 1, we will discuss the background for the Brnovich decision, including this Court’s previous important decision on voting rights.  In Part 2 we will take a close look at the Brnovich opinion and Justice Kagan’s dissent.     

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. 

Justice Samuel Alito

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.  

We will discuss the Brnovich decision in detail in Part 2 of this article.

The Wall Street Democrat