Voting Rights and Democracy

SCOTUS Will Consider Another Way to Gut the Voting Rights Act

In the 2020 election, it was voters of color who propelled Joe Biden to the White House and voters of color who flipped control of the U.S. Senate. Now, state legislatures run by Republicans are engaged in a concerted effort to roll back voting rights, particularly for communities of color. In battleground states, such as Georgia and Arizona, conservative legislators are pushing for new laws to make it harder to register and to cast a vote, indulging the same lies about voter fraud that fueled the Jan. 6 attack on the Capitol and Trump’s effort to overturn the election. Conservatives are clamoring for new hurdles to prevent voters of color from fully participating in our democracy.

Against this backdrop, the Supreme Court is poised to decide a critically important case that tests whether the Voting Rights Act—the law that has been long hailed as the crown jewel of the civil rights movement—will continue to serve as our nation’s front-line defense against racial voter suppression. On March 2, the court will hear oral argument in a key case out of Arizona, Brnovich v. Democratic National Committee. The question at hand is whether the Voting Rights Act bars state voting requirements that disproportionately disenfranchise voters of color without adequate legal justification.

The conservative justices who currently dominate the Supreme Court have a terrible track record on voting rights: They have repeatedly treated the right to vote as a second-class right and bent the law to shut the courthouse doors to voters when it matters most. Chief Justice John Roberts, who’s been an implacable foe of federal protection for voting rights since early in his career, has long “had it in for the Voting Rights Act,” according to a former colleague of his. Justice Clarence Thomas, joined more recently by Justice Neil Gorsuch, has signed opinions dramatically scaling back the Voting Rights Act. Justices Brett Kavanaugh and Amy Coney Barrett have threadbare records on voting rights, but the little we know suggests a willingness to give states broad authority to pile barriers on the right to vote, even though there is no right protected by more parts of the Constitution than the right to vote.

The Roberts court has already dealt a severe blow to the historic federal law that Martin Luther King Jr., Rep. John Lewis, and other leaders for racial justice fought and bled for. In 2013, Shelby County v. Holder gutted the Voting Rights Act’s pre-clearance requirement, one of our nation’s most successful weapons against racial discrimination in voting. The act had previously prevented states with a long history of discrimination from instituting voting changes without Department of Justice approval. But Shelby County took away this safeguard, which had helped ensure the constitutional mandate of equal political opportunity for all citizens regardless of race. Roberts and the court’s other conservatives nullified one of the act’s central pillars by turning a blind eye to the fact that the 15th Amendment explicitly gives Congress the power to enact legislation to eradicate the scourge of racism from our democracy.

After Shelby County, the Voting Rights Act has been hanging on by a thread. The key to its continuing promise is Section 2’s nationwide ban on electoral practices that result in a denial of equal political opportunity to voters of color. Section 2’s results test is critically important because its plain language targets discriminatory results, not merely purposeful discrimination by state policymakers. It forbids state laws that result in voters of color having “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Now, in Brnovich, the results test is in the crosshairs. If the court slashes what is left of the Voting Rights Act, states will have the green light to enact new voter suppression measures that make it harder for voters in communities of color to register to vote, cast ballots, and have them be properly counted. As in the aftermath of Shelby County, state voter suppression measures will once again proliferate. One of the most powerful weapons to combat white supremacy and safeguard a participatory democracy will be reduced to a historical relic.

Brnovich’s importance extends far beyond the specifics of the Arizona regulations at issue. While the Supreme Court has written scores of opinions applying the Voting Rights Act to questions concerning racial vote dilution in the context of redistricting, it has never decided how the results test applies to a vote denial claim. How the court answers this question will determine whether the act continues to provide a shield against racial voter suppression measures, including voter identification laws, voter purges, and other methods used to constrict access to the ballot. If the court hollows out the results test, the Voting Rights Act will be practically moribund.

That is exactly what conservatives are hoping for. Both the Arizona attorney general and the Republican National Committee, which intervened in the case, are urging the six-justice conservative majority to double down on Shelby County. They insist that Section 2’s results test is constitutionally questionable and must be radically pared down or face invalidation. In the most far-reaching of these formulations, all generally applicable time, place, and manner electoral regulations would be immune from challenge under the Voting Rights Act. This would effectively rewrite the act and open the door to blatant voter suppression.

These arguments do violence to the text and history of the 15th Amendment, which prohibits every method of denying or abridging the right to vote on account of race and gives Congress sweeping enforcement powers to make the right to vote a reality. The 15th Amendment’s explicit grant of enforcement power gives Congress the authority to ensure that the right to vote is actually enjoyed by all citizens regardless of race, a principle that an originalist approach would recognize. The arguments that the Voting Rights Act is constitutionally dubious, in essence, depend on ignoring that the 15th Amendment transformed the Constitution by empowering Congress to enact prophylactic measures.

The plain language of the Voting Rights Act and the Constitution both point in the same direction. It is the Supreme Court’s obligation to heed the language Congress chose to make our Constitution’s promise of voting rights for all, regardless of a race, a reality. “When Congress chooses not to include any exceptions to a broad rule,” as Justice Neil Gorsuch explained in last year’s landmark Title VII ruling, “courts apply the broad rule.” The question now is whether the Supreme Court’s conservative majority will abandon its commitment to textualism and originalism to give states even more sweeping powers to suppress the vote.

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