The Voting Rights Act regime as we knew it is gone, and it’s not coming back.
Once thought of as the crown jewel of the Second Reconstruction, the VRA has lost its luster. For the past decade or so, the Supreme Court has systematically reduced the scope and reach of the law. The Court’s decision last week in Brnovich v. Democratic National Committee is only the latest case, and certainly will not be the last, to interpret the act in a manner that will sideline it—permanently.
The Democratic National Committee, along with other plaintiffs, challenged two Arizona voting laws that it argued discriminated against voters of color. One law required voters to cast their ballot in their assigned precinct or else their vote would not count. A second law prohibited third parties, such as voting-rights activists, from collecting mail-in ballots from voters who were unable or unwilling to submit those ballots themselves (though it expressly allowed caregivers and family members to do so). The plaintiffs argued that these laws violated Section 2 of the Voting Rights Act, along with the Fourteenth and Fifteenth Amendments to the United States Constitution. Section 2 of the VRA prohibits the government from providing “less opportunity” for voters of color “to participate in the political process.” It protects voters from voting rules that are intended to or have the effect of discriminating on the basis of race.
Brnovich was about Section 2 of the VRA and was the Court’s first opportunity to determine how to apply the section to claims alleging denial of the right to vote. The defendants argued that the laws did not violate Section 2 because they were neutral voting laws that regulated the time, place, and manner of voting—the kinds of things that states are empowered to do under the Constitution. The district court ruled for the defendants, but the Ninth Circuit reversed that decision, siding with the plaintiffs. In an opinion by Justice Samuel Alito, the Court’s six conversative justices agreed with the defendants. Justice Elena Kagan wrote a fiery dissent, which Justices Stephen Breyer and Sonia Sotomayor joined.
The Court’s opinion in Brnovich is deeply problematic, but not because the majority reached the wrong result. Reasonable people can disagree as to whether the specific electoral rules at issue—the wrong-precinct rule or denial-of-assistance-by-third-parties rule—impose undue burdens on voters of color. One could understand an opinion concluding that the challenged laws do not make it sufficiently harder for voters of color to exercise their right to cast a ballot, which would make them okay under the VRA. To see what a reasonable opinion that ruled against the plaintiffs would look like, read the district-court opinion in the case, which found that the Arizona laws were not enacted with a discriminatory intent and the laws did not have disparate impact on voters of color.
Had the Supreme Court followed the district court’s lead, one could disagree, even vigorously, with that opinion. But that would be a legitimate and reasonable disagreement among people who share a joint enterprise: How should we, the legal and political system, protect voters of color from having to disproportionately bear burdens in our voting system? The problem with Justice Alito’s opinion in Brnovich is that the majority seems wholly uninterested in participating in that joint enterprise.
There are two ways of framing the problem in Brnovich. The first is to ask: Under what circumstances do ostensibly neutral voting rules impose impermissible burdens on the ability of voters of color to exercise their right to vote? Given America’s racially stratified society, and the fact that some states continue to pass voting laws that discriminate against voters of color, electoral rules will too often impose disparate burdens on voters of color.
It is also true, however, that states must impose burdens on voters in order to run an electoral system, and given our racially stratified society, voters of color are likely to bear disproportionate costs for rules that are both neutral and legitimate. The Court cannot articulate a rule that precludes the states from imposing any burdens on voters and makes running election systems impossible. This is what Alito’s majority opinion refers to as the “usual burdens on voting.” Fair enough.
Importantly, whatever rule the Court decides will govern in Section 2 cases, it will be zero-sum: It will unavoidably privilege the claims of voters of color against the interests of states, or the interests of states over the claims of voters of color. Thus, the fundamental question in the case is whether the states or voters of color ought to have the benefit of the doubt.
If the Court were writing on a blank slate, it would presumably be free to make whatever judgment it thinks appropriate, such as whether state rules are much more likely than not to be legitimate or whether certain burdens on voting are too much for voters of color to bear. But the Court is not writing on a blank slate. The core aim of the VRA is to protect voters of color from undue intrusion upon their voting rights by the states. Crucially, America’s racially stratified society did not happen by chance; it is the product of a long history of intentional discrimination, including voting discrimination. This history of discrimination and the reality of current discrimination should mean that the scales must tip in favor of voters of color and voting equality. Moreover, institutional deference for a co-equal branch should lead to deference to Congress’s judgment, as well as the democratic process, that voters of color deserve extra protection in attempting to exercise their right to vote.
Thus, recognizing that the Court is not writing on a blank slate, the second possible frame for the problem in Brnovich asks which burdens are permissible in light of the law’s commitment to equal opportunity. Put differently, Congress has already decided that voters of color get the benefit of the doubt. Consequently, if there is a cost to bear, it should be borne by the states. Even states’ legitimate interests must give way to the equality preferences of voters of color. This was the compromise forged in 1965 when Congress enacted the VRA and in 1982 when Congress amended Section 2, and that is at the heart of the VRA project.
Brnovich is so troubling and potentially destructive because it is not operating within the confines of the VRA project. The decision is a repudiation of the core aims of that project. Rather than engage productively in the collective enterprise of figuring out how to protect voters of color against the states, the Court majority is more interested in protecting the electoral rules of the states from undue intrusion by voters of color. The majority’s opinion sends a clear message that voter fraud, not racial discrimination, is a threat to the American system of representation. Of course, the majority rejects that characterization. Without feeling or effect, the majority notes that Section 2 “provides vital protection against discriminatory voting rules and no one suggests that discrimination in voting has been extirpated or that the threat has been eliminated.” This is a standard line in the Court’s VRA cases.
But that line is meaningless. In order to protect the states from voters of color, the Court has to make bringing Section 2 claims harder. As a consequence, the opinion is best understood as setting up a series of legal obstacles designed to protect the supposedly vulnerable states. The majority articulates five factors that courts must address when confronted with a Section 2 claim. First, the size of the burden imposed by the state is important. Second, they must look to the extent of the differential burden borne by voters of color as compared with white voters. Third, voting rules with a long pedigree, or those already in place when the substantive version of Section 2 was enacted by Congress, are presumptively allowed. Fourth, in order to determine whether a voting rule is impermissible, “courts must consider the opportunities provided by a State’s entire system of voting.” And finally, courts must defer to the strength of a state’s justification, particularly when the state asserts voter fraud as a justification, which the Court pronounced as a “strong and entirely legitimate state interest.” These factors are intended to, and will, protect the states against many Section 2 lawsuits. They will make Section 2 claims less likely to be filed by plaintiffs, and more likely to be lost when they are.
This majority’s abandonment of the voting-rights project prompted Justice Kagan to write a lamentation-cum-dissent, which reads more like a eulogy than anything else. “If a single statute represents the best of America,” she declared, “it is the Voting Rights Act. It marries two great ideals: democracy and racial equality.” Kagan called the majority’s interpretation of Section 2 “tragic.” She blamed the Court for the recent spate of voting-discrimination laws, noting, “The problem of voting discrimination has become worse … in part because of what this Court did in Shelby County.” (In Shelby County v. Holder, decided in 2013, the Court struck down the coverage formula contained in Section 4(b) of the VRA, the provision that Congress used to identify the states with a history of discrimination.) With its decision in Brnovich, “the Court has (yet again) rewritten—in order to weaken—a statute that stands as a monument to American’s greatness, and protects against its basest impulses.” She accused the Court of ignoring “Congress’s vision” and choosing “equality-lite.” Unlike the majority, Kagan advocated an approach that would put a thumb on the scale in favor of voters, which would make Section 2 plaintiffs likelier to prevail and discriminatory laws likelier to be struck down.
Brnovich is not unique. Like Shelby County before it, Brnovich is the work of a Court committed to states over voters of color. One of the majority’s concerns about the approach suggested by Kagan’s dissent is that her approach would impose a “high bar for States to pursue their legitimate interests” and would “bring about a wholesale transfer of the authority to set voting rules from the States to the federal courts.”
This argument by the majority is surprising for two reasons. One, the Court makes this accusation in the process of rewriting a federal statute because that statute conflicted with its own views on the prevalence of racial discrimination. And two, this is the very same court that in the 1960s decided the reapportionment, one-person, one-vote cases. Few election-law cases were and continue to be as intrusive on state authority as those protecting voters from the states by requiring the states to apportion their representative districts consistent with the Court’s conception of voting equality. Better a high bar for voters of color than for the states.
It was not always so. The Court has a history of standing with voters of color against the states. We have the Court to thank, not Congress, for the death of the white primary, the whites-only primary elections in the one-party South in which the primary election was all that mattered. It is the Court that struck a blow against racial gerrymandering in Gomillion v. Lightfoot. And though the civil-rights movement forced President Lyndon B. Johnson to put voting rights at the top of his agenda, and though Congress enacted the VRA, the Court sustained it and nourished it, starting with the landmark case of South Carolina v. Katzenbach. This is not to say that voters of color always won. They certainly did not. And there are admittedly voting-rights cases for which the Court ought to hang its head in shame. But for a long time, the Court stood alone with voters of color and later with Congress against the states, particularly those in the South.
There is an impulse in American society and politics today to unmoor the present from the country’s history of racial discrimination. That impulse is evident in the reaction to the 1619 Project as well as the bizarre targeting of an erstwhile obscure and insular legal academic domain, critical race theory. Interestingly, that impulse is also evident in the Court’s voting-rights jurisprudence. Shelby County is the majority’s attempt to free the present from the past. “History did not end in 1965,” Chief Justice John Roberts admonished in that case. Similarly, in Brnovich, Justice Alito finds it puzzling that Kagan’s dissenting opinion recounts the country’s history of racial discrimination. “The dissent provides historical background that all Americans should remember,” he concedes. However, “that background does not tell us how to decide these cases.” History is not relevant to the present. Or as he put it, the dissent “spends 20 pages discussing matters that have little bearing on the questions before us.” For the majority, and thus for the Court, in order to free the states and the present, they must be liberated from the past.
A Court operating within the logic of the VRA project would ask how much America’s racist past should define its present, or whether history provides a sufficient backlight to the present circumstances to illuminate current inequalities. These are difficult and interesting questions. But the justices in the majority do not seem interested in contributing to a constructive and collective enterprise. “Things have changed,” Roberts declared in Shelby County.
The sober-eyed truth is that the race-based model of protecting voting rights is dying, if not dead already. Whatever the merits of that model, so long as a conservative majority continues to control the Court and continues to believe that the voting-rights project is anachronistic, superfluous, and likely unconstitutional, the animating principle of the VRA—that racism in voting continues to deny voters of color an equal opportunity to participate in democratic politics—the effective parts of the VRA that remain are on borrowed time.
The implications for the future of voting rights are manifold. First, voting-rights activists and voting-rights attorneys will need to ignore advocates and academics who will try to assure them that the potential harm of Brnovich is overblown. Second, litigation, particularly under the VRA, is at least as likely to further narrow or eliminate the possibilities for relief under the VRA as it is likely to provide relief to the intended beneficiaries of the act. Third, H.R. 4, popularly known as the John Lewis Voting Rights Act, which is intended to restore and expand the preclearance regime that the Court sidelined in Shelby County, is likely dead on arrival. This is because H.R. 4 purports to extend a voting-rights project that the Court no longer believes in. If Congress passes and the president signs H.R. 4 in its current form, this Court is extremely likely to find it unconstitutional. Fourth, voting-rights activists would do well to continue to focus their efforts at the state level, particularly in blue states, to strengthen state law protecting the right to vote.
Finally, voting-rights activists ought to prepare for a future without the VRA and support an alternative to it. The best and strongest legislative option currently on the table is H.R. 1, or the For the People Act. (H.R. 1 is not a race-based bill. Therefore, it does not raise the constitutional issues that H.R. 4 raises.) Voting-rights activists may not support all of its provisions as the bill is currently drafted, but H.R. 1 is the right vehicle for protecting voters of color and for strengthening our democracy for all voters. It is the right model to supplant the dying VRA regime.
Undoubtedly, the Court has picked an odd time to repurpose judicial review in the domain of voting to vindicate states’ rights instead of voters’ rights. Only five months ago, a violent mob stormed the Capitol seeking to overturn a presidential election—and indecorously sent the nation’s elected officials scurrying for safety—because the mob falsely believed that the election had been fraudulently stolen from their preferred candidate. We are now three years away from the next presidential election and there is a nonfrivolous worry that some state officials will refuse to certify the election results in their state if their preferred candidate loses. Similarly, there is a nontrivial concern that some state legislatures will raise allegations of fraud and send a competing slate of electors to Congress. Relatedly, the Brennan Center has a running tally of states that are passing laws restricting voting rights. At last check, it was up to 17 states and 28 laws. As a result, a growing number of students of American democracy are alarmed that the American democratic endeavor is in peril.
This is the environment in which a majority of the justices on the Supreme Court of the United States, the institution that is supposed to play a crucial role in safeguarding our democracy by protecting the right of its citizens to equal participation, seem to have decided that the voters are a threat to the political system. The proper response of a self-governing people is to use the democratic process to protect their fundamental rights of participation. The Court may have limited Americans’ options, but enough of that process remains for it to be put to good use.