The Democrats’ New Voting-Rights Obstacle
Following the Supreme Court’s recent Arizona decision, voting-rights activists know they have to act fast.
There is a gnawing anxiety among voting-rights advocates that even if Democrats find a way to roll back the Senate filibuster and pass new federal legislation safeguarding access to the ballot, the Republican-appointed majority on the Supreme Court might still strike it down.
Last week’s Supreme Court ruling, in which the six Republican-appointed justices outvoted the three appointed by Democrats to uphold two Arizona laws that critics called racially discriminatory, has elevated that concern to a new height. It is forcing congressional Democrats and their allies to confront the question of whether it’s possible to “court-proof” their efforts to protect voting rights.
“A lot of people woke up this morning recognizing there are two really big thresholds and maybe the second one is now bigger,” Jessica Levinson, a law professor at Loyola Marymount University who specializes in election law, told me the morning after the Court’s ruling. “No. 1 is: How do you pass this legislation? And second: How do you protect it from this current Court?”
Democratic Representative John Sarbanes of Maryland, a lead sponsor of the sweeping Democratic election-reform bill known as H.R. 1, told me he remains confident that Congress has clear constitutional authority to set the nationwide floor of voting rights that the legislation would establish. “Our authority to do that … in respect to federal elections comes directly out of and is grounded in the elections clause of the Constitution,” Sarbanes said. “And I think there is plenty of jurisprudence this Court would continue to have to observe and defer to that stands for … our authority to make those kinds of decisions.”
But Republicans see an opening to stymie the Democratic push. The opportunity comes not so much from the specific legal principles in the Arizona case, but from the broader signal it sends that the conservative Supreme Court majority remains highly skeptical of federal intervention in state voting procedures and receptive to arguments that combatting “fraud”—even if none has occurred—can justify rules that disproportionately burden minority voters.
Twenty Republican attorneys general stressed precisely such arguments in a letter earlier this year promising legal challenges against H.R. 1 if it becomes law. “The Act would invert [the] constitutional structure, commandeer state resources, confuse and muddle elections procedures, and erode faith in our elections and systems of governance,” the letter argued. Behind these claims, the Republican attorneys general signaled that if H.R. 1 passed, they would counter that Congress lacks the authority to impose its provisions for presidential elections, even if its members possess such authority for House and Senate races.
The Court decision in the Arizona case looms over each key element of the Democratic agenda to respond to the restrictive voting laws that Republicans are passing, on an almost entirely party-line basis, across an array of red states.
The impact may be felt first in the Justice Department’s effort to combat these laws in the courts. The department recently filed a lawsuit against the restrictive law that Georgia Republicans passed this spring, and Justice Department officials tell me that they are seriously examining whether to bring additional cases against other states that have passed statutes this year making it more difficult to vote.
Last week’s ruling in the Arizona case, Brnovich v. Democratic National Committee, created an immediate challenge for that litigation by making it much harder to overturn state or local voting rules on the grounds that they have a discriminatory effect on minorities. The decision, written by Justice Samuel Alito, one of the Court’s most conservative members, established a daunting set of conditions for proving such discriminatory effects under the Voting Rights Act and flatly declared that even if a voting procedure does cause such “disparate impact,” it could still be justified in the name of combatting fraud. “Even if the plaintiffs had shown a disparate burden caused by [the Arizona laws], the State’s justifications would suffice to avoid … liability,” Alito wrote.
The Arizona result did not seem to catch the Justice Department by surprise. Perhaps anticipating a Supreme Court decision that weakened the effects provision of the VRA, the Justice Department argued in its case that Georgia acted with discriminatory intent against Black voters. But the department’s case is still grounded in analysis of the law’s disparate impact on minorities: It argues that Georgia legislators showed discriminatory intent because they passed the law even after they were presented with evidence of its discriminatory effect.
Observers across the political and legal spectrum agree that Alito’s reasoning in the Arizona case, particularly his emphasis on fraud, weakens the Justice Department’s position. The department’s decision to center its case on discriminatory intent “is a decent argument. If there’s a foreseeable consequence … it strains common sense to say you lack this [discriminatory] purpose,” Levinson said. “But now [Georgia] has a really strong card to play here, which is to say, ‘We are not motivated by trying to discriminate; we are motivated by trying to protect the electoral process against fraud.’”
The Alito decision, she added, strongly signals that the conservative Court majority will prioritize state claims of preventing fraud over almost any other consideration: “It is basically saying, ‘Just go ahead and claim you are worried about fraud. It might or might not be present, and we might be sure there is a disparate impact, but the fraud, real or imagined, is what we’re really concerned about here, not the disparate impact.’ That is such a bizarre inversion of what the Voting Rights Act is supposed to be about.”
The election lawyer Benjamin Ginsberg, a former general counsel for the Republican National Committee and George W. Bush’s two presidential campaigns, doesn’t share Levinson’s criticism, but he does second her view of the Brnovich decision’s likely impact on litigation against the state laws.
“Once you take away effects and have to prove intent and purpose, it really gets much harder,” he told me. Some changes in voting rules, Ginsberg believes, might remain vulnerable under an intent standard: “I still think if you eliminate ‘Souls to Polls,’ Sunday voting, that you can probably make a case that that has a discriminatory purpose behind it.” But most of the red-state changes that Democrats are contesting, he said, will be difficult to challenge on those grounds.
Another Democratic priority shaken by the Arizona decision is the party’s effort to rewrite and update the Voting Rights Act. That attempt initially was prompted by another Supreme Court decision: the 2013 ruling written by Chief Justice John Roberts in the Shelby County v. Holder case that invalidated the VRA’s provision requiring federal “preclearance” of voting changes in states with a history of discrimination. In that case, Roberts and the other four (at the time) Republican-appointed justices outvoted the four Democratic-appointed justices to void the section of the law imposing the preapproval process on southern states. (Roberts argued that conditions had changed since President Lyndon B. Johnson signed the law in 1965 and that Congress needed to modernize the formula that determines which states face preclearance.) Voting-rights advocates believe that if the preclearance provision had remained in effect, the Justice Department could have used it to block many of the restrictive laws red states have passed this year.
Updating the preclearance formula to rely instead on contemporary evidence of violations was the principal focus of House Democrats in the Voting Rights Act legislation passed in 2019, the first year Democrats controlled the majority since the Shelby County decision. Now many voting-rights advocates say that Democrats must also amend the separate provision of the law, known as Section 2, that Alito weakened in last week’s Arizona decision. “The Brnovich case means there is going to have to be some more strengthening of Section 2,” says Wendy Weiser, the vice president for democracy at the Brennan Center for Justice at NYU.
House Democrats are already discussing responses to the Arizona decision in the latest draft of the legislation—now named the John Lewis Voting Rights Advancement Act. They plan to reintroduce it by late summer. “Against the backdrop of the most coordinated state-level effort to restrict the right to vote in decades, the Supreme Court has proven itself keen on destroying our nation’s most important voting-rights law,” Representative Terri Sewell of Alabama, the lead sponsor of the revised VRA, told me in an e-mailed statement. “Without congressional action, last week’s decision will shape our efforts to protect the precious right to vote for at least the next decade.”
From the outset, Democrats have crafted their VRA updates with the awareness that Roberts and the other GOP-appointed justices may take almost any opportunity to overturn them. That possibility drove the decisions to hold extensive hearings documenting challenges to voter access, both in 2019 and again this year.
Yet even with this effort to armor the new bill in contemporary evidence of discrimination, few legal experts in either party believe that the GOP-appointed Supreme Court Justices are guaranteed to bless a new preclearance formula. In the Shelby County decision, Roberts suggested that an updated formula was a necessary condition for Court approval—but not assuredly a sufficient one.
Ginsberg said Democrats should not be confident that this Court will uphold any formula that requires only some states to receive federal preclearance. The “coverage formula” that the Court might be sure to endorse, he predicted, is one that covers every state, as Senator Joe Manchin of West Virginia recently proposed. But such a broad mandate, Ginsberg argued, probably couldn’t pass Congress: “There are a lot of Democrats who get off the bus if their states are covered,” he said.
The biggest uncertainty, and greatest anxiety, for Democrats revolves around the Court’s potential posture toward the crown jewel of the party’s voting-rights agenda: the omnibus legislation known as H.R. 1. The bill that passed the House in March would make sweeping changes, including tightening campaign finance-disclosure rules, banning partisan gerrymandering, and requiring all states to adopt guaranteed on-demand absentee voting and early voting, as well as automatic and same-day registration.
After a Republican Senate filibuster blocked that legislation in June, Democrats are negotiating a scaled-back version based on principles that Manchin indicated he would support.
Party leaders hope that if Republicans continue to block that eventual compromise proposal, Manchin, Senator Kyrsten Sinema of Arizona, and any other Democrats hesitant about eliminating the filibuster rule will agree to exempt voting-rights legislation from it. Sarbanes, perhaps optimistically, told me that Democrats, with an eye toward affecting the congressional redistricting process that begins soon, still hope to pass some version of H.R. 1 by August. That step would require changing the filibuster rule.
The Arizona case, which turned on the Court’s statutory reading of the existing Voting Rights Act, doesn’t directly address Congress’s authority in H.R. 1. But many voting-rights advocates see in it continued signs that the conservative Court majority will resist new federal voting mandates on the states. Although the entire focus from voting-rights advocates in recent months has been “filibuster, filibuster, [finding] political will, what we’re seeing now is [that] passage of an act is far from the final word,” Levinson said. “Justice Alito signaled that [he will] be really suspicious” if Congress infringes “on state prerogatives.”
If Democrats do retrench the filibuster to pass some version of H.R. 1, the legal fight could come down to a distinction between the Constitution’s elections and electors clauses. The elections clause in Article 1 provides Congress with the ultimate authority to control the “times, places and manner of holding elections for Senators and Representatives.” But the “electors” language in Article 2 doesn’t mention Congress and instead names only state legislatures in allocating authority for the procedures to name electors to the Electoral College for the presidential race.
The Republican state attorneys general, in their March letter, argued that that provision gives state legislatures “exclusive” authority to control the rules surrounding presidential elections. Even if Congress possesses the authority to set the rules for congressional elections, the letter implied, the Republican AGs would argue that it cannot impose the same requirements for presidential contests—even though every presidential race occurs simultaneously with a congressional election. “The exclusivity of state power to ‘define the method’ of choosing presidential electors means that Congress may not force states to permit presidential voting by mail or curbside voting, for example,” they wrote.
Other legal scholars firmly disagree, noting that in precedents stretching back to 1934, the Supreme Court has repeatedly ruled that Congress’s authority extends to all federal elections, including the presidential race. In a 1970 decision upholding Congress’s authority to lower the voting age in all federal elections, Justice Hugo Black declared, “It cannot be seriously contended that Congress has less power over the conduct of presidential elections than it has over congressional elections.”
Given that history, Sarbanes, a lawyer, said Congress has solid authority to mandate nationwide voting rights, such as access to early voting, for all federal elections. “If you look back at the [precedents], I think the Court would have to be really overreaching to find that the authority of Congress to … put in place these important standards … did not apply to federal elections broadly, meaning congressional and presidential elections,” he told me.
But Ginsberg believes that although the elections clause leaves Congress on “strong ground” to regulate congressional elections, there’s a substantial possibility that this Supreme Court majority might accept the claim that legislators’ authority does not extend to setting nationwide voting rules for presidential contests. “My guess is that this Supreme Court, with its textualist bent, would buy into that argument,” he predicted.
In practice, having different voting and registration rules for presidential and congressional races could be chaotic and nearly impossible to administer. The fact that serious analysts don’t rule out this Supreme Court majority reaching that conclusion crystallizes the uncertainty about which federal election rules, if any, it considers beyond challenge. “I cannot understate the amount of damage this Supreme Court has done across the board on voting, redistricting, and money in politics,” Weiser, of the Brennan Center, said. “It has not just not acted; it has affirmatively done significant damage to all of these fundamental building blocks of a fair democratic process.”
Weiser, like Sarbanes, nonetheless is dubious that if Senate Democrats take the momentous step of retrenching the filibuster to pass a new Voting Rights Act, some version of H.R. 1, or both, even the Roberts majority would risk a potentially volcanic backlash by overturning or eviscerating those new statutes. But, she admitted, “we don’t know the outer boundary of how far this Court will go.” Even if Democrats can scale the daunting mountain of passing new voting-rights laws through Congress, they may discover the answer sooner than later.