Editor’s Note: Joshua A. Douglas is a professor at the University of Kentucky J. David Rosenberg College of Law who specializes in election law, voting rights, and constitutional law. He is the author of “Vote for US: How to Take Back Our Elections and Change the Future of Voting.” Follow him @JoshuaADouglas. The opinions expressed in this commentary are his own; view more opinion at CNN.
Eight years ago, the US Supreme Court gutted a major portion of the Voting Rights Act in its infamous Shelby County v. Holder decision, making it easier for states with a history of voter discrimination to enact new onerous voting rules. States like Georgia and Texas took notice, passing strict new voter ID laws, absentee ballot rules and a host of other provisions that make it harder for some people to vote.
The Court just doubled down on that attack on the right to vote.
The specific Arizona laws at issue in the Brnovich case, which the Court just decided by a 6-3 vote that fell on predictable ideological lines, are less momentous than the rule the Court laid down for future Voting Rights Act cases. Still, while upholding the Arizona laws, the Court made it much harder for voting rights advocates to protect against racial discrimination.
Voting rights plaintiffs had filed suit against two Arizona laws: one says that a vote will not count if a voter goes to the wrong precinct and then, finding their name not in the poll books, fills out a provisional ballot. The other limits who can collect and return completed ballots, also known to opponents as ballot harvesting. The plaintiffs argued that the laws violated Section 2 of the Voting Rights Act, which prohibits voting rules that have the effect of making it harder for minority voters to cast a ballot that will count.
As expected, the Court upheld both laws, reversing the Ninth Circuit Court of Appeals. The question wasn’t whether the voting rights advocates would lose this case; it was how badly they would lose.
They lost the whole ballgame.
To be sure, the Court did not completely gut Section 2 of the Voting Rights Act. Instead, the majority opinion, delivered by Justice Samuel Alito, is more subtle, offering five “guideposts” to construe the landmark civil rights statute. But each of those guideposts place significant hurdles on voting rights plaintiffs going forward – spelling bad news for equality in the right to vote.
Put simply, it’s death by a thousand cuts.
Alito said that, in analyzing whether a law results in vote denial on the basis of race, courts should consider (1) the overall burden on voters, (2) whether the voting rule has been around for a long time, (3) the size of the impact on minority voters, (4) the state’s overall election scheme, and (5) the state’s interest in combating election fraud.
None of this is within the text of the Voting Rights Act. Section 2 simply says that a law is invalid if voting is “not equally open” to racial minorities and if it provides “less opportunity than other members of the electorate to participate in the political process.” As Justice Elena Kagan wrote in her powerful dissent, the majority “founds its decision on a list of mostly made-up factors, at odds with Section 2 itself.”
For instance, whether a state has an interest in combating voter fraud – miniscule as it is – should have little bearing on the question of whether a law discriminates among voters. Whether some states have used the same rule for years should also be irrelevant under the law. A law that currently produces a discriminatory effect harms voters in every election.
Alito’s opinion may also impact claims that a legislature passed a law with a discriminatory intent, which is the issue raised by Attorney General Merrick Garland’s lawsuit, filed last week, against Georgia’s new onerous voting law. Alito indicated that “partisan motives are not the same as racial motives,” meaning that a court could potentially reject the argument that race was Georgia’s key motivation by focusing on the politics of the debate in the state legislature.
There is no easy solution to this conundrum. Congress was considering the For the People Act, which would require easy voting access across the country, but even though it passed the US House of Representatives, it stalled at the US Senate. Congress is also still considering the John Lewis Voting Rights Act, but it is unclear if the bill has enough votes.
State courts are still open to claims that voting laws violate state constitutions. And even after the Court’s decision, Section 2 is still available to ferret out the worst voting laws, though the standard is now a lot tougher to meet.
The Court’s decision is a stark reminder that it is no fan of voting rights. The thumb is firmly on the side of the states to regulate their elections as they wish, which in many places is bad news for American democracy.