For the third time in modern history, the Supreme Court has interpreted in a narrow way the strongest law that Congress has ever passed to protect voting rights – protection that was created especially for minority citizens. In a 6-to-3 ruling on Thursday, the last day of the current term for decisions, the Court once more made it harder to enforce the Voting Rights Act of 1965.
The ruling came down at a point in history when its harm to democratic participation could be both immediate and widespread, with many state legislatures, across the nation, passing a broad range of new vote-suppression laws similar to the two Arizona laws upheld by the new ruling.
Those kinds of laws generally are passed without their sponsors explicitly saying or conceding that they were seeking to harm minority voters because of their race, but such laws in actual practical operation have a heavier negative effect on those very minorities. Thursday’s ruling made it significantly harder to prove that negative effect.
Part of the decision was based only on the language of the 1965 law, so Congress would have the option of attempting to repair the damage done by that reading. However, mustering the support for doing so will be difficult if not out of reach in Congress as long as it remains closely-divided between the two major political parties. (Even if Congress were to try to shore up the 1965 law, the current Court majority might read that, too, narrowly.)
But another part of it was an interpretation of the Constitution’s Fifteenth Amendment, guaranteeing the rights of minority voters, and that reading could be overturned or changed only by a constitutional amendment – a task difficult at any time, but virtually impossible now with America so deeply polarized politically.
Viewed purely in partisan terms, the Thursday decision was a sweeping victory for Republicans and a devastating defeat for Democrats. Much of the language in the majority opinions speaks approvingly of state legislatures’ power to try to head off election fraud, even before it actually occurs – a theme that is now driving many state legislatures to act in the wake of former President Trump’s frivolous claim that the 2020 election was stolen from him by fraud. Many state lawmakers are attempting to justify new laws by saying that many Americans have lost faith in election integrity even without actual proof that fraud is widespread or common.
This particular case had partisan overtones from its beginning: it has been throughout a court fight explicitly between the two major political parties.
If one pays attention to the party of the president who chooses particular Supreme Court Justices, whether or not that influences how Justices actually do vote in cases with potential partisan effect, one will note that the six Justices in the majority are conservative in philosophy and were chosen, partly for that reason, by Republican presidents and the three in dissent have liberal philosophies and were chosen, partly for that reason, by Democratic presidents.
Viewed in historic terms, the decision in Brnovich v. Democratic National Committee, followed the pattern that had occurred twice in earlier major rulings by the Court involving the 1965 Act.
In 1980, the Court had ruled in an Alabama case that the original version of the Act’s provision outlawing racial bias in voting (its Section 2) required actual proof that a law was passed with the explicit purpose of discriminating based on race – the same kind of difficult-to-get proof as is required to show a violation of the Fifteenth Amendment.)
Then, in 2013, the Court in another case from Alabama had made unenforceable the parts of the law (Sections 4 and 5) that required states and counties with histories of past racial discrimination in voting to get approval in Washington before they could make any change in any law dealing with voting.
(Congress did move in 1982 to overturn the 1980 ruling on Section 2; it declared that no proof of racial intent was needed to show a violation of that section; all that was needed was showing that the “result” or “effect” was to make it harder for minorities to vote.)
After the loss of Sections 4 and 5 in 2013, Section 2 as bolstered by Congress in 1982 remained the only major part of the 1965 law still available to challenge laws suppressing minority voting rights.
Now, with Thursday’s ruling in the Arizona case, Section 2 has lost a significant amount of its power against such laws.
Here are the ways the Court majority got to that result:
- It said that state legislatures may try to deal with their fears of election fraud even without any evidence that fraud has occurred or will occur.
- It said legislatures may pass restrictions on voting that affect some voters of color without proof that different versions would have less negative effect on voters of color.
- It said statistics of the negative impact on minority voters count only if they show more than a few percentage points of difference for them.
- It said what counts most is whether a state’s entire voting system provides equal access to the ballot, and less important is whether some voters have less opportunity because specific rules restrict types of voting more often used by minorities. (The two restrictions upheld by the ruling provide that votes will not count if cast in the wrong election precinct, and set limits on who can collect mail-in ballots for delivery.)
- It said the mere fact that a voting restriction causes some class of voters inconvenience in exercising their rights does not prove a violation of Section 2.
- Limits on voting that were in widespread use in 1982, when Congress acted to shore up Section 2 (such as tight limits on mail-in voting) are more often than not likely to be valid now even if circumstances of voting or cultural patterns have changed.
Beyond these new readings of Section 2, the Court also made it more difficult for minority voters to rely on the Fifteenth Amendment promise of equal voting rights to challenge new vote suppression. The decision said that federal appeals courts have only limited authority to second-guess the findings of trial court judges on whether there was sufficient proof of a specific intent to discriminate based on race.
Justice Samuel A. Alito, Jr., who in recent years has been the Court’s strongest supporter of state legislatures’ power over voting, wrote the majority opinion. It was joined by Chief Justice John G. Roberts, Jr., and Justices Amy Coney Barrett, Brett M. Kavanaugh, Neil M. Gorsuch and Clarence Thomas.
Justice Elena Kagan wrote a blistering dissenting opinion, accusing the majority of giving “a cramped reading of Section 2,” and doing so “wherever it can.” Her opinion was joined by Justices Stephen B. Breyer and Sonia Sotomayor.