The Supreme Court is Trampling on Voting Rights…Again: part 2

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.  The Court is basically giving a green light to Republican lawmakers in states like Georgia who are enacting voting restrictive laws. (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. 

The Court Interprets Voting Act Very Narrowly

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.  

Justice Elena Kagan

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.  In particular, ballot collection had not created 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 a 1982 amendment to the Voting Rights Act, Kagan emphasized that courts should look at how a specific law or procedure (the one under review) operated in connection 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. 

Justice Kagan also 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 Justice 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 total number of ballots discarded could have affected the results of some elections. 

Furthermore, Arizona election officials changed the locations for polling stations at an unusually high rate compared to other states.  The frequent changes left many voters, especially minority voters, confused about where they should vote, so they went to the wrong polling station.  

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 while nullifying them for local 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.  

Apocalypse Now

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 go-ahead signal 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. 

The Wall Street Democrat