Kagan Laments America’s Dark History Of Voter Suppression In Dissent, Citing The Court As A Primary Antagonist

WASHINGTON, DC - JANUARY 20: U.S. Supreme Court Associate Justice Elena Kagan looks on during the inauguration of U.S. President-elect Joe Biden on the West Front of the U.S. Capitol on January 20, 2021 in Washington... WASHINGTON, DC - JANUARY 20: U.S. Supreme Court Associate Justice Elena Kagan looks on during the inauguration of U.S. President-elect Joe Biden on the West Front of the U.S. Capitol on January 20, 2021 in Washington, DC. (Photo by Alex Wong/Getty Images) MORE LESS
July 1, 2021 2:06 p.m.

In a dissent to Brnovich v. Democratic National Committee stretching longer than Justice Samuel Alito’s majority opinion, Justice Elena Kagan recites the United State’s brutal history of suppressing minority voters, ultimately pointing to Thursday’s opinion as just the latest chapter in the quest to bar those voters from the ballot box.

She was joined in her dissent by the two other liberals on the Court, Justices Stephen Breyer and Sonia Sotomayor. All the conservatives joined Alito in a decision that will likely have the effect of weakening Section 2 of the Voting Rights Act, one of the only pathways left to challenge restrictive voting laws after the Court’s conservatives first gutted the VRA in an infamous 2013 decision.

“If a single statute represents the best of America, it is the Voting Rights Act. It marries two great ideals: democracy and racial equality. And it dedicates our country to carrying them out,” Kagan begins.

“If a single statute reminds us of the worst of America, it is the Voting Rights Act,” she continues. “Because it was—and remains—so Necessary.”

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She tracks efforts to restrict minority voting rights both by force and by what she describes as “bloodless actions,” laws carefully crafted to make the obstacles to voting insurmountable. The Court first emerges as a villain in her story in a reference to the Dred Scott decision, “the Court’s most deplorable holding,” that banned Black people from citizenship and voting at all.

She writes that the decades-long quest to keep minorities, particularly Black people, from the voting booth met its first significant match in the Voting Rights Act of 1965. She notes, perhaps in a signal to a couple certain current Democratic U.S. Senators, that the law was only passed when it overcame a Senate filibuster, sending it to President Lyndon Johnson’s desk.

While attempts to suppress minority voting continued, the VRA flexed its muscle, knocking down hundreds of laws. It was working, she writes — until again, the Supreme Court entered the equation.

In Shelby County vs. Holder, the Court’s conservatives gutted the VRA by tossing out its formula to determine if a state or locality had a history of discriminatory voting practices and had to get approval from the Department of Justice to enact new laws, a process called “preclearance.” In its reasoning, the majority claimed supposed massive strides in the country’s racial equality since the VRA was enacted.

Congress has been unable to pass a new formula to make the law whole again. Even now, the law that would do that — renamed the John Lewis Voting Rights Act in honor of a man, Kagan recounts, who thought he would die from a beating while protesting on the Edmund Pettus Bridge on Bloody Sunday in Selma, Alabama — faces the insurmountable obstacle of the filibuster.

“Weaken the Voting Rights Act, and predictable consequences follow: yet a further generation of voter suppression laws,” she writes.

She peppers her writing with snippets of the late Justice Ruth Bader Ginsberg’s dissent in the Shelby case, including her famous simile: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

That brings Kagan’s “tragic” tale to the present — when, at a “perilous moment” for this country’s commitment to equal rights, she writes, the majority chose to deal another blow to the VRA, this time targeting Section 2.

“It chooses equality-lite,” she quips of the majority, after laying out that Section 2 was written to apply to every conceivable facet of a voting law — its intent, its result, its application — even of a seemingly neutral law. The majority’s decision would narrow its use.

In his majority opinion, Alito pointedly critiqued Kagan’s interpretation of the law — which she argues encapsulates the effect of voting laws as well as their intent — as “radical.”

The dissent “would rewrite the text of [Section 2] and make it turn almost entirely on just one circumstance—disparate impact,” he wrote, referring to an interpretation of the law that emphasizes a voting regulation’s effect on minority groups, regardless of intention.

“That is a radical project, and the dissent strains mightily to obscure its objective,” he writes. “To that end, it spends 20 pages discussing matters that have little bearing on the questions before us.

“The dissent provides historical background that all Americans should remember … but that background does not tell us how to decide these cases,” Alito’s gripe continues. “The dissent quarrels with the decision in Shelby County v. Holder … which concerned [Sections 4 and 5] of the VRA, not [Section 2]. It discusses all sorts of voting rules that are not at issue here.”

In this case specifically, the Court’s majority upheld two Arizona voting laws: one that mandates that ballots cast at the wrong voting precinct be thrown away whole-hog, and one that bans third parties from collecting and dropping off absentee ballots.

On the first, Kagan tracks the enormous number of ballots disregarded in Arizona because of the law, which differs from other states in that it won’t even count statewide votes on the miscast ballot — a voter’s selection of candidate for President or governor — but throws out the entire thing.

“Arizona is the national outlier in dealing with out-of-precinct votes, with the next-worst offender nowhere in sight,” she writes.

On top of that, she points out the extremely high rate at which voting precincts are moved in Maricopa County, Arizona’s most populous, hitting minority voters harder than others. She adds that “all minority voters were disproportionately likely to be assigned to polling places other than the ones closest to where they lived,” only increasing the odds that those are the voters who will accidentally cast their ballots at the wrong site and be entirely disenfranchised.

That’s plenty, she argues, to find the law in violation of Section 2 of the VRA.

She reaches the same conclusion in regards to Arizona’s other law under scrutiny, the one that bans third parties from collecting absentee ballots. She demonstrates the extreme distances Arizona Native Americans have to overcome to reach post offices in telling of their dependence on other clan members to collect and drop off the ballots, a longtime tradition in those communities.

And while Arizona already polices fraud in these cases, it chose to pass yet another law, making that kind of longtime tradition a crime. Before the Court gutted the VRA, the DOJ expressed skepticism about the law, and Arizona pulled it back rather than see it be blocked. Shortly after the Shelby decision cleared that obstacle, though, the legislature successfully tried again with an even more stringent version.

“Except in a pair of footnotes responding to this dissent, the term ‘Native American’ appears once (count it, once) in the majority’s five-page discussion of Arizona’s ballot-collection ban,” she writes.

Her dissent, while full of stinging criticism of the majority’s Thursday decision, is a broader lament of the Court’s actions that helped bring the country to its current, perilous brink, with a critical democratic safeguard weakened as GOP-led state legislatures across the country spew restrictive voting laws, and their national counterparts block federal voting rights bills with the help of the filibuster.

“This Court has no right to remake Section 2,” she writes.

“The law that confronted one of this country’s most enduring wrongs; pledged to give every American, of every race, an equal chance to participate in our democracy; and now stands as the crucial tool to achieve that goal,” she adds. “That law, of all laws, deserves the sweep and power Congress gave it. That law, of all laws, should not be diminished by this Court.”

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