I spent my Fourth of July holiday this year like most others did: spending time with friends and family, eating hot dogs and hamburgers, and setting off fireworks. It’s one of my favorite holidays—partly because of my affection for this country and brightly colored explosions, and partly because of its timing. July 4 also usually follows the end of the Supreme Court’s annual term, capping off what are my busiest months at work each year. This year, however, relaxation didn’t come as easily. I found myself instead thinking about the court’s final ruling before its summer recess.
In theory, Brnovich v. Democratic National Committee was about whether two Arizona voting rulings—a policy that bans counting provisional ballots cast by out-of-precinct voters and a state law that bans most third-party collection of absentee ballots—violate Section 2 of the Voting Rights Act of 1965. In theory, Brnovich was also about how courts should decide when a state measure violates Section 2’s ban on racially discriminatory voting practices, and whether the test used to strike down the Arizona rules in question was the right one.
In practice, however, that’s not really what Brnovich was about. It instead continued the Supreme Court’s ongoing campaign to crush the life out of the Voting Rights Act. In a nihilistic ruling by Justice Samuel Alito, the six-justice conservative majority did not so much interpret Section 2 as they rewrote it and gave future litigants a roadmap to circumvent what was left. The court’s approach has dire implications not just for voting rights cases under the current law but also for possible congressional efforts to strengthen America’s democratic system.
As I noted last week, the court did not really bother to tell lower courts how to apply Section 2’s broad language to the mercurial threat of racist voter suppression. Instead, it set up a series of trip wires for future Section 2 claims to stumble over in court. Much of the litigation in Brnovich revolved around the test used by a Ninth Circuit Court of Appeals super-panel, which struck down the two provisions in question last year. So what sort of test would the court adopt?
None, apparently. “We 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. Those who have little faith in the court’s good faith on voting rights might conclude the justices didn’t want to establish a clear hurdle that future plaintiffs could then overcome. But whatever the court’s motive, it will be much harder for plaintiffs to hit a moving target instead of a stationary one.
Perhaps it’s incorrect to say the justices didn’t create a test in Brnovich. Alito then offered a series of “guideposts” to help lower courts resolve future cases along these lines. They are largely unmoored from the text and purpose of Section 2 itself. In practical terms, what they represent are trap doors that lower courts can use to send voting rights lawsuits to jurisprudential dungeons. If these guideposts came from Section 2 itself, then Congress would be responsible for them. As Justice Elena Kagan noted in her dissent, however, they appear to be cut from whole cloth by Alito to suit his own purposes.
“The majority’s opinion mostly inhabits a law-free zone,” she wrote. “It congratulates itself in advance for giving Section 2’s text ‘careful consideration.’ And then it leaves that language almost wholly behind. (Every once in a while, when its lawmaking threatens to leap off the page, it thinks to sprinkle in a few random statutory words.) So too the majority barely mentions this Court’s precedents construing Section 2’s text. On both those counts, you can see why. As just described, Section 2’s language is broad. To read it fairly, then, is to read it broadly. And to read it broadly is to do much that the majority is determined to avoid.”
Take, for instance, Alito’s “guidepost” on 1982, the year that Congress most recently amended Section 2. He set it as a baseline of sorts for evaluating future claims. “Because every voting rule imposes a burden of some sort, it is useful to have benchmarks with which the burdens imposed by a challenged rule can be compared,” Alito explained. “The burdens associated with the rules in widespread use when Section 2 was adopted are therefore useful in gauging whether the burdens imposed by a challenged rule are sufficient to prevent voting from being equally ‘open’ or furnishing an equal ‘opportunity’ to vote in the sense meant by Section 2.”
But, as Kagan noted, this is the exact wrong way to read Section 2 and understand the circumstances behind the 1982 amendments. “An election rule prevalent at that time may make voting harder for minority than for white citizens; Section 2 then covers such a rule, as it covers any other. And contrary to the majority’s unsupported speculation, Congress ‘intended’ exactly that,” she wrote, quoting from language in the bill itself. “Section 2 was meant to disrupt the status quo, not to preserve it—to eradicate then-current discriminatory practices, not to set them in amber.” This is fairly basic stuff: If Congress had wanted to preserve the 1982 status quo, after all, it wouldn’t have passed a law to change things.
So why set a baseline at all? It’s worth noting here that Alito’s 1982 rule has some troubling practical implications. As election law expert Rick Hasen noted in an op-ed in The New York Times last week, 1982 was “a period when early and absentee voting were scarce and registration was much more onerous in many states.” Alito is fully aware of this. He readily notes in this section of his opinion that only three states allowed no-excuse absentee voting in 1982 and that most states “typically required nearly all voters to cast their ballots in person on election day and allowed only narrow and tightly defined categories of voters to cast absentee ballots.”
If you believe that the right to vote is sacred, then the court’s unwillingness to protect it is jarring. But the justices do not appear to approach the matter from the same starting point. For Alito and his colleagues, the state’s interests are what must be defended against a “radical interpretation” of the Voting Rights Act. “The dissent is correct that the Voting Rights Act exemplifies our country’s commitment to democracy,” Alito wrote for the court, “but there is nothing democratic about the dissent’s attempt to bring about a wholesale transfer of the authority to set voting rules from the states to the federal courts.”
It’s worth pausing to acknowledge the sheer chutzpah of Alito’s suggestion that the dissenters are the undemocratic ones here, for disfavoring state legislatures. The Voting Rights Act was also passed by a legislature: the United States Congress, which meets in the big white dome across the street from Alito’s own workplace. He may have caught a glimpse of it once or twice during his commute. Is it more undemocratic for a state legislature to pass unequal voting laws or for Congress to pass a law that restricts state legislatures from passing unequal voting laws? The answer is not obvious to at least six Americans, and they all happen to serve on the Supreme Court.
“Section 2 was indeed meant to do something important—crucial to the operation of our democracy,” Kagan wrote in dissent. “The provision tells courts—however ‘radical’ the majority might find the idea—to eliminate facially neutral (as well as targeted) electoral rules that unnecessarily create inequalities of access to the political process. That is the very project of the statute, as conceived and as written—and now as damaged by this Court.”
It’s worth noting that the court’s conservatives could have ruled in Arizona’s favor on more narrow grounds. They could have simply held that the evidence presented by the plaintiffs in this case just wasn’t persuasive enough to show discrimination and sent it back to the lower courts. Indeed, that was the conclusion reached by the district court in 2018 before the Ninth Circuit overruled it. And the Roberts court is more than capable of handing down narrow rulings in blockbuster cases when it wishes: Look no further than this term’s ruling in Fulton v. City of Philadelphia to see how the court can avoid resolving thorny legal questions.
But in Brnovich, the court’s conservative bloc wanted to go big or go home. Look no further than Alito’s final guidepost, which suggests that unequal voting rules are “less likely” to violate Section 2 if they further an important state interest. “One strong and entirely legitimate state interest is the prevention of fraud,” Alito wrote. “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.”
Voter fraud is an exceedingly rare phenomenon in American elections, with only a handful of cases found among the millions of ballots cast in recent decades. But it looms large in the rhetoric of Republican lawmakers, who invoke its false specter to justify almost every restrictive voting measure they try to impose. Alito’s voter-fraud fears, cloaked in the magisterium of the Supreme Court, will make it that much harder to fight back against unequal laws and policies that invoke them.
“The state need not even show that the discriminatory rule it enacted is necessary to prevent the fraud it purports to fear,” Kagan wrote in reference to Alito’s invocation of voter fraud. “So the state has no duty to substitute a non-discriminatory rule that would adequately serve its professed goal. Like the rest of today’s opinion, the majority’s treatment of the collection ban thus flouts what Section 2 commands: the eradication of election rules resulting in unequal opportunities for minority voters.”
The problems with the Brnovich ruling go far beyond two provisions in Arizona. When the Supreme Court gutted the Voting Rights Act’s preclearance system in 2013, the remedy was theoretically simple: Congress could pass a new, updated formula for determining which states must receive federal approval for changes to their election laws. (In practical terms, the filibuster and Republican control of the Senate make it much harder.) But what remedy is there for Brnovich? Even if Congress could tweak or strengthen Section 2 itself, as it did in 1982, it wouldn’t matter. As Kagan noted, the actual text of Section 2—to say nothing of Congress’s rationale in passing it—played little role in the reasoning behind Alito’s opinion for the court.
The court’s willingness to squelch existing voting rights laws also bodes ill for the measures currently under consideration by Congress. Would the For the People Act’s mandates to expand absentee ballot access and early voting survive if brought before the court’s six conservatives? Would the John Lewis Voting Rights Advancement Act, which hopes to impose the preclearance system on every state in the Union, pass muster from a court that could not stomach the system when it affected only nine states? The Fourth of July is a celebration of Americans’ right to self-government. But after the Supreme Court made it that much harder for Americans to protect each other from ourselves when we vote, the hot dogs didn’t taste quite as good and the fireworks didn’t shine quite as bright.
