This Court Has Abandoned the Most Essential Element in American Democracy: Voters

Two recent decisions capture perfectly just how distorted the Court’s approach is.

Artwork of toppled pillars sinking in the sea
Getty; The Atlantic

About the author: Kimberly Wehle is a professor of law at the University of Baltimore. She is the author of the book How to Read the Constitution—And Why.

Some Supreme Court watchers found relief in the Court’s recent decisions, many of which were narrow and stopped short of overturning major precedents. But two rulings underscore what Americans need to know about the post-Trump Court: It isn’t invested in defending the rights of American voters, the Constitution’s core demographic, with the same vigor that it applies to the interests of nonpersons, such as corporations.

In two cases decided on the same day, the Court signaled its side. In Brnovich v. Democratic National Committee, a 6–3 majority watered down what’s left of the Voting Rights Act of 1965 on the rationale that voters showed insufficient harm to overcome Arizona’s reasons for limiting access to the ballot box. In Americans for Prosperity Foundation v. Bonta, conversely, a fractured conservative majority—with Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas joining in the outcome but on differing rationales set forth in a spate of concurring opinions—rejected California’s justifications for a law requiring charitable organizations to reveal their donors, instead staunchly defending the First Amendment rights of the plaintiffs, even with no showing of actual harm.

What’s striking about these decisions is the intellectual discordance underlying the respective legal tests applied by the majority. Writing for the majority in Brnovich, Alito imposed a five-factor threshold requirement on voters seeking to bring cases under Section 2 of the Voting Rights Act, which itself contains no such test. In Bonta, two tax-exempt charities sued California, arguing that their donors’ privacy interests were at stake if they couldn’t remain anonymous to the state. Yet Chief Justice John Roberts’s majority opinion required virtually no showing that the disclosures expose donors to damage so as to justify striking down the California law—in sharp contrast to the Arizona laws upheld in Brnovich.

The Brnovich dispute can be traced to the Supreme Court’s 2013 decision in Shelby County v. Holder, in which a conservative majority effectively destroyed Section 5 of the Voting Rights Act. (Section 5 required states with histories of discrimination in voting to obtain the green light from the Justice Department before new state laws could go into effect, a process known as “preclearance.”) As problematic voting laws surged back onto the scene, voters turned to its cousin, Section 2, for judicial relief. Section 2 prohibits any voting prerequisite that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” It goes on to explain that a violation occurs if, “based on the totality of the circumstances, it is shown that the [election processes] are not equally open to participation by members of [a given race] in that [those] members have less opportunity than other members of the electorate to participate.”

Importantly, the statute does not define key terms such as results, totality of the circumstances, equally open, or opportunity. The conservative majority in Brnovich filled in those legislative blanks—to the detriment of voters.

The plaintiffs claimed, among other reasons, that Arizona laws confining who can collect ballots on behalf of voters violate Section 2 because Native Americans on reservations have relatively scant access to post offices or private transportation to polling sites as compared with other voters. They also challenged a provision that cancels a voter’s entire ballot—not just picks for local races—if the voter mistakenly votes in the wrong precinct. The out-of-precinct law hits low-income, minority voters disproportionately hard, as Arizona moves polling places 30 percent more frequently in Black and Hispanic neighborhoods than in white ones.

From this bald statutory language, Alito surmised that “equal openness and equal opportunity are not separate requirements,” despite Congress’s use of both terms in the statute. Open, Alito reasoned, means “without restrictions as to who may participate,” whereas openness means “a situation or condition favorable to attainment of a goal.” So a polling station might be open to all people, regardless of race, but the opportunity to vote may differ based on racial factors because, for example, white neighborhoods have more polling places per capita and machines in each station than predominantly Black neighborhoods. But because the statute also uses the words in that—i.e., “in that its members have less opportunity than other members of the electorate to participate in the political process”—Alito figured, “equal opportunity helps to explain the meaning of equal openness.” Alito essentially conflated opportunity with openness, thereby narrowing the reach of the Voting Rights Act. Only discrimination as to who is permitted to participate in the first place is covered.

Alito went on to articulate a five-factor test for equal openness under the statute’s “totality of the circumstances” language. According to Alito, it’s not enough for voters to show that their opportunity for ballot access negatively differs from that of voters of other races by virtue of a law. Instead, voters must demonstrate (1) “obstacles and burdens that block or seriously hinder voting”; (2) “the degree to which a voting rule departs from what was standard practice when § 2 was amended in 1982”; (3) “the size of any disparities in a rule’s impact on members of different racial or ethnic groups,” as “small disparities are less likely than large ones to indicate that a system is not equally open”; (4) the unavailability of other “opportunities provided by a State’s entire system of voting”; and (5) the relative weakness of “the state interests served by a challenged voting rule.” For this last factor, Alito quipped that “one strong and entirely legitimate state interest is the prevention of fraud.”

In a scathing dissent, Justice Elena Kagan wrote that the majority opinion “mostly inhabits a law-free zone.” Although Congress designed Section 2 to bring about “the end of discrimination in voting,” Alito’s third factor openly tolerates some measure of discrimination on the basis of race and color. Moreover, Section 2 was specifically amended by Congress to correct prior misinterpretations by courts that set the threshold too high for voters—a historical detail that underscores Congress’s goal of protecting voters from arbitrary voting rules enacted by state legislatures.

For its part, Bonta involved a challenge to a California law requiring charitable organizations to disclose the names of major donors in order to register with the state. The Court applied a construction of the First Amendment that it called “exacting scrutiny,” which would allow the state to mandate the identification of donors if there is “a substantial relation between the disclosure requirement and a sufficiently important government interest.” The majority held that there was a “dramatic mismatch” between the state’s interest in investigating charities for fraud and the disclosure rule, calling it “a dragnet for sensitive donor information.” The Court thus vigorously protected unnamed, possibly wealthy donors in Bonta over the interests of the voting public. (No donors actually joined the lawsuit.)

Justice Sonia Sotomayor argued in her dissenting opinion that the majority went too far in “striking the law down in its entirety” with no proof that “disclosure will likely expose [donors] to objective harms, such as threats, harassment, or reprisals.” In fact, she complained, the chief justice’s opinion “recklessly holds a state regulation facially invalid despite petitioners’ failure to show that a substantial proportion of those affected would prefer anonymity, much less that they are objectively burdened by the loss of it.”

So for voters, the conservative majority accepted the state’s excuses for imposing burdensome voting laws at face value and manufactured a five-factor test that voters must satisfy before having any chance of overcoming those excuses. For charitable organizations and their unnamed backers, the conservative majority found that California’s interests in rooting out fraud were insufficient to justify a burden on charitable organizations that was not demonstrated with a showing of actual harm.

To be sure, First Amendment law and voting-rights law did not develop in tandem, and anonymity is a valid and recognized interest under the Court’s precedent. But both are moored in the Constitution and the Bill of Rights—ratified in 1788 and 1791, respectively—which were designed primarily with the rights of living, breathing human beings in mind. The animating concern was that politicians with unlimited power would bully regular people with impunity. Protecting individual people from arbitrary government action does—or should—remain the central guiding principle of constitutional jurisprudence today.

The Supreme Court lost its bearings on this issue in 2010, when a conservative 5–4 majority in Citizens United v. Federal Election Commission struck down key provisions of federal legislation imposing campaign-finance restrictions. Its rationale was that limiting political spending by corporations violated those corporations’ First Amendment right to free speech. Given the Court’s history of snubbing voting-rights laws, pending legislative solutions proposed by congressional Democrats in the form of H.R. 1 (which would expand voting rights nationwide, amend campaign-finance laws, counteract partisan gerrymandering, and impose new ethics rules on federal officeholders) and H.R. 4 (which would restore Section 5 of the VRA), are insufficient fixes. If either bill was miraculously to survive a filibuster by Senate Republicans, the Court may well strike it down, or at the very least meaningfully weaken it.

Moreover, Congress has yet to even propose vital amendments to the Electoral Count Act of 1887, which in its current form contains gaping loopholes that could provide an opening for Republican-dominated state legislatures to cancel a state’s popular vote after November 4, 2024, or, failing that, for a Republican-dominated Congress to cancel a state’s Electoral College certification for a Democratic presidential nominee on January 6, 2025. If that happens, it will be an outright calamity.

The Constitution needs major surgery, in the form of an amendment that affirmatively protects and preserves all citizens’ right to vote. Many people believe that such foundational language must already exist somewhere in the Constitution; it does not. Were such an amendment in place, the Supreme Court would feel pressed to apply the same rigorous test to laws restricting voters’ access to the ballot that it does to laws implicating the First Amendment concerns of nonprofits, corporations, and deep-pocket donors. But for now, one thing is clear: This Court is not going to protect We the People; its heart lies elsewhere.