Voting Rights and Democracy

Op-Ed: The Supreme Court Might Kill Voting Rights—Quietly

At the center of any democracy is the right to vote. If people cannot vote, then they have no say in the laws that govern them and cannot be truly free and equal citizens. But the right to vote is not a machine that runs by itself; it is dependent on the work of laws and institutions. And in America, conservatives have turned those laws and institutions against that right, seeking to reverse hard-fought gains that have helped make the constitutional promise of democracy a reality for all citizens. With a new voting-rights case before the Supreme Court, the situation might be about to get much, much worse.

This attack won its most important victory in Shelby County v. Holder, when the Court dealt a severe blow to the Constitution’s multiracial democracy. In that case, the Court struck down one of the most important parts of the Voting Rights Act, the crown jewel of the civil-rights movement, ignoring that the Fifteenth Amendment grants Congress broad power to ensure that the right to vote is equally enjoyed by all citizens regardless of race.

Now, in Brnovich v. DNC, a challenge to two Arizona voting regulations, the Court might be about to gut what remains of the Voting Rights Act. The conservative legal movement is hoping that the Court will announce a broad ruling that Section 2—the act’s nationwide ban on practices that result in racial inequality in the American electoral system—is constitutionally dubious and should be radically rewritten. The Court might not go this far, but it is still likely to take a page from Chief Justice John Roberts’s career-long advocacy against the act and insist, as he did during his stint in the Reagan administration, that violations of Section 2 “should not be made too easy to prove, since they provide a basis for the most intrusive interference by federal courts into state and local processes.” Even short of a major constitutional ruling, however, the Court is likely to open the door to the kind of voter-suppression measures—such as efforts to curtail early voting and place limits on voting by mail—that are currently gaining support in state legislatures in response to the electoral successes that voters of color helped produce in 2020.

First, Justices Samuel Alito and Amy Coney Barrett suggested that the results test had to be reined in or, as Alito put it, “every voting rule” would be “vulnerable to attack under Section 2.” Both Alito and Barrett seemed uncomfortable with the fact that the results test requires courts to take into account centuries of slavery and anti-Black racism that robbed Black people of wealth and left many mired in poverty. Their comments suggest that they might vote to reverse prior case law that recognizes that the Voting Rights Act seeks to prevent the effects of past economic discrimination from undermining America’s constitutional commitment to an inclusive multiracial democracy.

Second, Justice Brett Kavanaugh insisted that Section 2 was a compromise statute that cannot be read as a “pure results” test. He suggested that the statute’s guarantee of equal political opportunity was at war with its prohibition on discriminatory results. Under this view, perhaps, the time, place, and manner of voting regulations used in many states might be permissible, including voter-ID laws, voter purges, and some of the Arizona regulations at issue in Brnovich. The problem with that, however, as Justice Sonia Sotomayor observed, is that this would be “rewriting Section 2,” which in “clear language” prohibits laws that result in a race-based denial or abridgement of the right to vote. If conservatives adopt this approach, it will be clear that the respect for enacted text that they preach in other situations does not extend to the results test of the Voting Rights Act.

Third, Justice Neil Gorsuch proposed that the Court adopt a heightened causation standard, picking up on a suggestion made by the Trump administration’s brief in the case. In Bostock v. Clayton County, last term’s landmark Title VII ruling, Gorsuch interpreted virtually identical language to apply a more generous standard. But he indicated that the Title VII standard did not necessarily apply in the context of the Voting Rights Act. The Biden administration disowned the brief that the Trump administration had filed earlier, but did not tell the Court why a heightened causation standard was wrong. This silence loomed large, especially now that the justices might adopt a stringent causation standard that would make challenging state voter-suppression measures much more difficult under the results test.

Fourth, Chief Justice Roberts and other justices suggested that the results test does not prevent states from legislating to address voter fraud. Roberts pressed the challengers to explain why concerns about what he called “racial proportionality” should force states to accept practices that might lead to fraud. In the same vein, Gorsuch insisted that states do not need any actual evidence of fraud to enact voting limits. Neither gave any consideration to the fact that lies about voter fraud can be used to attack legitimate democracy, as has been abundantly clear since the November election, and even long before. In the campaign-finance context, conservatives insist on the highest level of scrutiny when the government seeks to root out corruption, but when it comes to voter fraud, the conservative wing of the Court seems willing to give nearly limitless deference to these concerns.

Curtailing Americans’ right to vote will not require a full gutting of Section 2. The Supreme Court seems poised to hollow out what little remains of the Voting Rights Act, not with a major constitutional pronouncement but with complex, technical doctrines that will likely sanction all manner of state voter-suppression measures. If the Court does this, the historic law would be sapped of its vitality, and true American democracy would become an even more distant goal.

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