At the center of any democracy is the right to vote. If people cannot vote, then they have no say in the laws that govern them and cannot be truly free and equal citizens. But the right to vote is not a machine that runs by itself; it is dependent on the work of laws and institutions. And in America, conservatives have turned those laws and institutions against that right, seeking to reverse hard-fought gains that have helped make the constitutional promise of democracy a reality for all citizens. With a new voting-rights case before the Supreme Court, the situation might be about to get much, much worse.
This attack won its most important victory in Shelby County v. Holder, when the Court dealt a severe blow to the Constitution’s multiracial democracy. In that case, the Court struck down one of the most important parts of the Voting Rights Act, the crown jewel of the civil-rights movement, ignoring that the Fifteenth Amendment grants Congress broad power to ensure that the right to vote is equally enjoyed by all citizens regardless of race.
Now, in Brnovich v. DNC, a challenge to two Arizona voting regulations, the Court might be about to gut what remains of the Voting Rights Act. The conservative legal movement is hoping that the Court will announce a broad ruling that Section 2—the act’s nationwide ban on practices that result in racial inequality in the American electoral system—is constitutionally dubious and should be radically rewritten. The Court might not go this far, but it is still likely to take a page from Chief Justice John Roberts’s career-long advocacy against the act and insist, as he did during his stint in the Reagan administration, that violations of Section 2 “should not be made too easy to prove, since they provide a basis for the most intrusive interference by federal courts into state and local processes.” Even short of a major constitutional ruling, however, the Court is likely to open the door to the kind of voter-suppression measures—such as efforts to curtail early voting and place limits on voting by mail—that are currently gaining support in state legislatures in response to the electoral successes that voters of color helped produce in 2020.
Section 2 has long been a target of conservatives because it contains what’s known as the “results test,” whose text sweeps extremely broadly, prohibiting state electoral regulation that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race.” According to Section 2, even neutrally written state measures that are enacted for benign motives might cause voters of color to enjoy “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice,” and therefore violate the act’s mandate of voter equality.
This is a powerful mechanism, as the law thus targets discriminatory results, not discriminatory intent. It looks to practical realities in the lived experiences of citizens of color and aims to ensure that the right to vote is enjoyed by all, regardless of race. That mandate is what undergirds the question now at issue in Brnovich, which is what standard should be applied to evaluate challenges to state enactments that disproportionately disenfranchise voters of color, such as Arizona’s regulations throwing out votes cast in the wrong precinct and establishing a ban on third-party ballot collection, violations of which are criminal.
In nearly two hours of oral argument last Tuesday, the Supreme Court drilled down on that hugely important question. Arizona Attorney General Mark Brnovich and Michael Carvin, a lawyer who represented the Republican National Committee at the hearing, urged the Court to radically pare down the results test. Without stringent constraints, Brnovich claimed, “Section 2 would exceed Congress’s powers to enforce the Reconstruction amendments, improperly inject race into all voting laws, and impede a state’s ability to run their elections.” This attack on the results test, however, did not get much traction during oral argument. The Court’s conservative justices shied away from questioning Congress’s express constitutional power to stamp out racial voter suppression.
Carvin, who argued that all regulation of election mechanics should be immune from challenge under the Voting Rights Act, because such laws do not deny anyone voting opportunities, faced difficulty defending that position, which would sanction all manner of voter suppression by the states. In withering questioning by Justice Elena Kagan, Carvin conceded that a state would not be allowed to announce that each county could have only a single polling place or mandate that all polling places be held in country clubs. Even Carvin had to admit that lived realities matter.
Exchanges such as these have led some observers to suggest that the Voting Rights Act had a surprisingly good day. But a close reading of the transcript suggests that the Court’s conservative justices might be looking to borrow from the Roberts playbook and make it extremely difficult to challenge state laws that disproportionately disenfranchise voters of color, effectively hollowing out the results test in the process, even if not gutting it outright. Four different theories were voiced during oral argument, any one of which could turn out to be central to whatever opinion the Court hands down this summer.
First, Justices Samuel Alito and Amy Coney Barrett suggested that the results test had to be reined in or, as Alito put it, “every voting rule” would be “vulnerable to attack under Section 2.” Both Alito and Barrett seemed uncomfortable with the fact that the results test requires courts to take into account centuries of slavery and anti-Black racism that robbed Black people of wealth and left many mired in poverty. Their comments suggest that they might vote to reverse prior case law that recognizes that the Voting Rights Act seeks to prevent the effects of past economic discrimination from undermining America’s constitutional commitment to an inclusive multiracial democracy.
Second, Justice Brett Kavanaugh insisted that Section 2 was a compromise statute that cannot be read as a “pure results” test. He suggested that the statute’s guarantee of equal political opportunity was at war with its prohibition on discriminatory results. Under this view, perhaps, the time, place, and manner of voting regulations used in many states might be permissible, including voter-ID laws, voter purges, and some of the Arizona regulations at issue in Brnovich. The problem with that, however, as Justice Sonia Sotomayor observed, is that this would be “rewriting Section 2,” which in “clear language” prohibits laws that result in a race-based denial or abridgement of the right to vote. If conservatives adopt this approach, it will be clear that the respect for enacted text that they preach in other situations does not extend to the results test of the Voting Rights Act.
Third, Justice Neil Gorsuch proposed that the Court adopt a heightened causation standard, picking up on a suggestion made by the Trump administration’s brief in the case. In Bostock v. Clayton County, last term’s landmark Title VII ruling, Gorsuch interpreted virtually identical language to apply a more generous standard. But he indicated that the Title VII standard did not necessarily apply in the context of the Voting Rights Act. The Biden administration disowned the brief that the Trump administration had filed earlier, but did not tell the Court why a heightened causation standard was wrong. This silence loomed large, especially now that the justices might adopt a stringent causation standard that would make challenging state voter-suppression measures much more difficult under the results test.
Fourth, Chief Justice Roberts and other justices suggested that the results test does not prevent states from legislating to address voter fraud. Roberts pressed the challengers to explain why concerns about what he called “racial proportionality” should force states to accept practices that might lead to fraud. In the same vein, Gorsuch insisted that states do not need any actual evidence of fraud to enact voting limits. Neither gave any consideration to the fact that lies about voter fraud can be used to attack legitimate democracy, as has been abundantly clear since the November election, and even long before. In the campaign-finance context, conservatives insist on the highest level of scrutiny when the government seeks to root out corruption, but when it comes to voter fraud, the conservative wing of the Court seems willing to give nearly limitless deference to these concerns.
Curtailing Americans’ right to vote will not require a full gutting of Section 2. The Supreme Court seems poised to hollow out what little remains of the Voting Rights Act, not with a major constitutional pronouncement but with complex, technical doctrines that will likely sanction all manner of state voter-suppression measures. If the Court does this, the historic law would be sapped of its vitality, and true American democracy would become an even more distant goal.