In a hugely consequential ruling last week, the US supreme court upheld two Arizona voting restrictions and, in the process, significantly curtailed one of the most powerful provisions that remain of the Voting Rights Act.
No one was particularly surprised the Arizona measures were upheld – the Biden justice department filed a letter with the supreme court saying it did not object to them. But when I spoke with voting rights lawyers earlier this year, they were cautiously hopeful the justices might find some way to preserve the measures without dealing too much of a blow to the Voting Rights Act. That didn’t happen – the court’s majority opinion, authored by Samuel Alito, unequivocally narrows the law and gives lawmakers powerful ammunition to pass more restrictive voting laws.
The Arizona case deals specifically with section 2 of the Voting Rights Act, which prohibits any voting rule that denies equal access to the ballot box based on race. It is a provision that civil rights lawyers have long used to challenge the boundaries of voting districts, but they have also turned to it more recently to challenge discriminatory voting practices and policies, such as overly-restrictive voter ID requirements and cuts to early voting.
But the ruling in the Arizona case said section 2 could only be used in a much narrower set of circumstances. Alito laid five factors for courts to consider when evaluating challenges to voting laws, including whether a restriction goes beyond the “usual burdens” of voting, and whether the disparate impact on minority voters is small or large. He also said that judges should consider the motivation behind a voting law change, and that “one strong and entirely legitimate state interest is the prevention of fraud.”
If section 2 were to be read broadly, Alito argues, it would lead to chaos in elections, with civil rights groups able to challenge even the most innocuous election rules.
The problem is that there’s no evidence for this. Section 2 cases are extremely complicated, expensive and time-consuming to bring. Winning them is rare. Since 2013, there have been just 61 section 2 cases filed, 23 of which had been successful as of 2018, according to one amicus brief filed at the supreme court.
As a result of last week’s ruling, it will now be virtually impossible to challenge a voting law that is not explicitly racist. All the factors in Alito’s test are “tools to be utilized to throw voters out of court,” David Gans, director of the human rights, civil rights & citizenship program at the Constitutional Accountability Center, wrote in a post on Scotus Blog.
Justice Elena Kagan, writing in dissent for the court’s three liberal justices, is unsparing in her criticism of the majority opinion. She accuses Alito and her five other colleagues of writing in a “mostly law-free zone”. The five factors Alito lays out, Kagan says, are “mostly made up”.
More fundamentally, Kagan writes, the court’s majority turns a blind eye to how voting discrimination actually works. One of the most powerful voter suppression strategies is to pile small inconveniences on top of one another to the point where it makes it nearly impossible to vote.
“In countenancing such an election system, the majority departs from Congress’s vision, set down in text, of ensuring equal voting opportunity. It chooses equality-lite,” she writes. “Efforts to suppress the minority vote continue. No one would know this from reading the majority opinion.”