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The Supreme Court just dealt another blow to the Voting Rights Act, limiting how the law’s most important remaining enforcement mechanism can be used to protect voting rights.
The 6-3 opinion in Brnovich v. Democratic National Committee, written by Justice Samuel Alito and joined by the court’s other five conservatives, constrains the application of Section 2 of the Voting Rights Act. And while Alito didn’t go as far as some civil rights groups had feared, leaving open the possibility that other, more clearly discriminatory voting laws could still be struck down using the provision, he and the court made it clear exactly how hard it will be for civil rights groups and Democrats to overturn Republican-crafted laws that are aimed at making it harder to vote.
"[W]e think it prudent to make clear at the beginning that we decline in these cases to announce a test to govern all VRA [Section] 2 claims involving rules, like those at issue here, that specify the time, place, or manner for casting ballots,” Alito wrote in the decision, before laying out “guideposts” for how Section 2 could be used in future rulings—and established a relatively limited interpretation of how the law could be used.
Section 2 of the Voting Rights Act prohibits states and localities from implementing voting practices or procedures that discriminate on the basis of race, color, or language. Historically, other parts of the law were cited more often in voting rights cases.
The reason Section 2 is such a big deal now is the damage that the Supreme Court already dealt to the Voting Rights Act. Eight years ago, the conservative court struck down the formula that required states and localities with a long history of racial discrimination in voting to preclear any voting law changes with the Justice Department. That led civil rights groups to seek protection under the law’s other most powerful provision. And now, the court has made it harder for them to win cases using the remaining protection of the nation’s most important voting rights law.
One major part of Alito’s decision is an interpretation that laws that happen to discriminate against minorities are fine so long as they’re just as likely to impact white people of the same socioeconomic status. Republicans have repeatedly sought in recent months to make it harder for people without cars or who work unusual hours to vote by limiting voting hours, in-person voting locations, the length of early voting periods, and access to mail voting, moves that often disproportionately target and Black, Hispanic, Native American voters. The court now says that these moves are just fine in their eyes.
“Mere inconvenience cannot be enough to demonstrate a violation of section 2,” Alito wrote, dismissing hurdles to the basic right of voting as he found that the disparate racial impact of voting laws must be significant in order to violate the Voting Rights Act.
“Small disparities are less likely than large ones to indicate that a system is not equally open. To the extent that minority and non-minority groups differ with respect to employment, wealth, and education, even neutral regulations, no matter how crafted, may well result in some predictable disparities in rates of voting and noncompliance with voting rules,” he continued.
Supreme Court Justice Elena Kagan wrote the dissent, calling Alito’s decision “tragic” on multiple occasions.
"What is tragic here is that the Court has (yet again) rewritten—in order to weaken—a statute that stands as a monument to America’s greatness, and protects against its basest impulses."
But while Alito’s decision made it harder for plaintiffs to prove intentional racial discrimination, he declined to fully eliminate the test by which it can be proven in court—a more radical move that both Justices Neil Gorsuch and Clarence Thomas said they would have made in their concurring opinion.
This ruling could have far-reaching effects, making it even more difficult for Democrats and civil rights groups to challenge Republicans’ unprecedented state-level project to expand voting restrictions. That means those efforts will continue unabated, and could encourage Republicans in states they control to be even more aggressive in how they seek to curtail voting rights. It also means that civil rights advocates and Democrats will be left with even fewer options to fight these efforts in GOP-controlled states.
The case centered on a pair of Arizona laws passed by Republican lawmakers.
The first Arizona law that the Supreme Court upheld requires local officials to toss out ballots cast at the wrong precinct rather than partly count them; the second makes it illegal for anyone except family members, caregivers and postal workers to collect and deliver ballots for people, outlawing a process where campaign workers and activists help collect votes.
Democrats sued, arguing that the laws disproportionately impacted minority voters—especially the second law, which disproportionately impacts Arizona’s large populations of rural Native Americans, many of whom don’t have home mail delivery in a state where more than four fifths of all voters cast their ballots by mail.
Civil rights groups had held out hope that the conservative-dominated court would issue a narrow ruling where the pair of laws could stand without fundamentally changing how the Voting Rights Act could be applied. But instead, the court decided to severely undercut the law by interpreting Section 2 of the Voting Rights Act, which prohibits discriminatory voting practices.
Democrats were clearly split on this case; the Democratic National Committee brought the suit, trying to overturn the laws, but the Biden administration wrote a memo arguing that the laws should be allowed to stand, in an apparent effort to head off a disastrous court ruling. The ruling showed why they felt the need to cede this battle to live to fight another day in the broader war to protect voting rights.
The ruling doesn’t come as a surprise given the current makeup of the court. The Biden Justice Department seemed to expect it: When it announced last week it would sue to to overturn Georgia’s restrictive new voting laws, the lawsuit intentionally avoided using arguments under Section 2, with the hope that that they could maintain a strong case even if the Supreme Court did further damage to the Voting Rights Act.
Alito also seems to buy into the circular logic that concern about voter fraud ginned up by lies about an election can justify voting restrictions.
“One strong and entirely legitimate state interest is the prevention of fraud. Fraud can affect the outcome of a close election, and fraudulent votes dilute the right of citizens to cast ballots that carry appropriate weight. Fraud can also undermine public confidence in the fairness of elections and the perceived legitimacy of the announced outcome,” he wrote.
Voting fraud is real, but there have been very few documented cases of widespread voting fraud. In spite of that, Republicans from President Trump on down have used false claims of fraud to convince voters that elections aren’t secure, then used that fear to justify new restrictions.