6-3 SCOTUS Further Scales Back Reach of Voting Rights Act

WASHINGTON, DC - JUNE 28: A view of the U.S. Supreme Court on June 28, 2021 in Washington, DC. The Supreme Court issued orders for next term on Monday, but no opinions in argued cases. Five rulings in argued cases re... WASHINGTON, DC - JUNE 28: A view of the U.S. Supreme Court on June 28, 2021 in Washington, DC. The Supreme Court issued orders for next term on Monday, but no opinions in argued cases. Five rulings in argued cases remain for this week, before the Court wraps up their term and heads for a summer recess. (Photo by Drew Angerer/Getty Images) MORE LESS
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July 1, 2021 10:12 a.m.

The Supreme Court’s 6-3 conservative majority ruled Thursday that two restrictive voting policies in Arizona did not violate the Voting Rights Act. The majority opinion, written by Justice Samuel Alito laid out the “guideposts” for courts to consider in deciding whether a state’s election rules have the effect of discriminating against minority voters.

The court’s opinion was not a full-on gutting of the relevant VRA provision, as some voting rights advocates feared, but nonetheless will likely weaken the power of the voting rights law. The court’s three liberals dissented in the case, while Justice Neil Gorsuch, joined by Justice Clarence Thomas, wrote a concurring opinion.

Alito’s opinion said the court was declining to lay out a specific test for courts to use when weighing challenges to election regulations brought under Section 2 of the Voting Rights Act, a provision that has been used more frequently in voting rights cases after the Supreme Court in 2013 gutted another section of the law.

The Arizona case was the first time the Supreme Court was weighing in on how the provision applied in cases concerning election regulations, though the high court has repeatedly considered its use in redistricting lawsuits.

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Alito said that, this being the court’s “first foray into the area,” the justices “think it sufficient for present purposes to identify certain guideposts that lead us to our decision in these cases.”

His opinion said that the “the size of the burden imposed by a challenged voting rule is highly relevant,” while noting that “every voting rule imposes a burden of some sort.”

“Mere inconvenience cannot be enough to demonstrate a violation of [Section 2],” he said. He also said the courts should consider how much a voting policy in question deviates from how voting worked in 1982, when Congress passed the relevant VRA provision.

He also said that “some disparity” in how a law affects different racial communities “does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote.”

The courts, he said, “must consider the opportunities provided by a State’s entire system of voting.” And he also emphasized the attention courts should pay to the “strong state interests” that make it less likely that restrictive policies violate the VRA.

“One strong and entirely legitimate state interest is the prevention of fraud,” Alito wrote.

Though Alito had claimed the interpretation of Section 2 that the court was offering Thursday was meant to merely provide “guideposts,” altogether, the factors Alito’s opinion highlighted — and the dismissive attitude he expressed towards obstacles to the ballot box — could make it much more difficult for voting rights advocates to win cases brought under Section 2.

The liberals’ dissent, penned by Justice Elena Kagan, said that the majority opinion “undermines Section 2 and the right it provides.”

“The majority fears that the statute Congress wrote is too ‘radical’—that it will invalidate too many state voting laws,” Kagan wrote, referring to how Alito described the more muscular interpretation of the VRA put forward by the court’s liberals. “So the majority writes its own set of rules, limiting Section 2 from multiple directions. Wherever it can, the majority gives a cramped reading to broad language.”

Her dissent referenced the 2013 Supreme Court decision, Shelby County v. Holder, that pulverized another part of the VRA that had required certain states to get federal approval to change their election practices. She also quoted the late Rep. John Lewis on how, as a young activist, he described the purpose of the VRA.

“What is tragic here is that the Court has (yet again) rewritten—in order to weaken—a statute that stands as a monument to America’s greatness, and protects against its basest impulses,” Kagan wrote.”What is tragic is that the Court has damaged a statute designed to bring about ‘the end of discrimination in voting.'”

The case, Brnovich v. Democratic National Committee, was a challenge to two restrictive voting policies in Arizona: its 2016 ban on most forms of third party ballot collection and its longstanding practice of tossing out the entire ballot cast by a person who voted out of her precinct.

Democrats challenged those policies in court, causing anxiety among some voting rights advocates who feared the conservative Supreme Court would use the case to curtail enforcement of the Voting Rights Act. The restrictive policies were upheld by a district court and in front of a three-judge appellate panel. But Democrats won when they took the case to the full U.S. Court of Appeals for the 9th Circuit, prompting Arizona’s Republican Attorney General Mark Brnovich to seek the Supreme Court’s intervention. (Arizona’s Democratic Secretary of State Katie Hobbs is siding with Democrats in the case.)

At the heart of the case was the VRA’s so-called results test, which targets voting policies that have the effect of discriminating against minority voters. Because proving intentional discrimination — the other prong of the VRA — is increasingly hard for those challenging restrictive policies (lawmakers try to avoid putting their motives in writing), the results test is crucial for VRA enforcement. But the case — and the arguments Republicans were making in defense of the two Arizona policies — presented the Supreme Court with a variety of options for scaling back the reach of the Voting Rights Act.

The conservative majority, notably, rejected the most extreme proposal — put forward by Arizona’s Republican Party — for undercutting the law. The GOP had argued that the results should only apply in cases concerning redistricting and voter registration, and that it could not be used to challenges regulations concerning the time, place and manner of elections.

That means, ostensibly, the Supreme Court has allowed for Section 2’s results test to be continued to be used to challenge election regulations. However, Alito’s opinion defanged its power in that context. For instance, he played down the consideration of socio-economic inequalities in determining whether a voting policy had a discriminatory effect.

“To the extent that minority and non-minority groups differ with respect to employment, wealth, and education, even neutral regulations, no matter how crafted, may well result in some predictable disparities in rates of voting and noncompliance with voting rules,” he wrote.

He also put his thumb on the scale in favor of states’ arguments that the mere threat of fraud was enough to justify passing restrictive laws, even if there wasn’t evidence that mass fraud was occurring.

Pointing to the 2018 North Carolina mail voting fraud scandal concerning a GOP House campaign, Alito wrote, “The Arizona Legislature was not obligated to wait for something similar to happen closer to home.”

The court’s further undermining of the Voting Rights Act comes as Democrats in Congress — in the face of Senate filibuster rules — have struggled to find a path to pass legislation that would expand voting rights.

“It is simply unconscionable that the Court’s conservative majority chose to double down on their gutting of the Voting Rights Act, failing to properly respond to a wave of restrictive and discriminatory laws in the wake of Shelby and a flood of suppressive laws that have followed President Trump’s Big Lie about the November election,” Senate Majority Leader Chuck Schumer said in a statement.

The opinion will also likely hinder the Biden administration’s ability to bring cases to address the surge in restrictive policies. Last week, the Justice Department unveiled its first major voting rights case under the Biden administration. It targeted the restrictive voting law passed in Georgia earlier this year. Notably, the lawsuit did not include in its claims an allegation that the Georgia law violated the VRA’s discriminatory effect provision — the part of the VRA before the court Thursday. Its absence was interpreted to be a sign that the DOJ was waiting to see how the conservative justices would treat the provision in the Arizona case.

Read Thursday’s opinion below:

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