On Tuesday, as Republican lawmakers around the country advanced bills designed to prevent people of color from voting, the Supreme Court heard a potentially fatal challenge to the Voting Rights Act. Because conservatives now hold a 6–3 majority on the court, no one seriously expects a resounding victory for equal suffrage. The only real question is exactly how much damage the majority will do to the last vestiges of the landmark civil rights law. Tuesday’s arguments proved, once again, that several ultraconservative justices are ready to eradicate the last meaningful obstacles to racist voter suppression. But there were some signs that not every Republican-appointed justice is ready to go along with the Republican Party’s scheme to permanently bury the VRA.
Tuesday’s case, Brnovich v. Democratic National Committee, imperils the “results test” that Congress added to the VRA’s Section 2 in 1982. As its name suggests, this standard prohibits election laws that result in disproportionate disenfranchisement of racial minorities. It’s critically important for two reasons. First, the Supreme Court has interpreted the Constitution to prohibit only those voting restrictions that intentionally discriminate on the basis of race. Today, it is virtually impossible to prove that legislators willfully quashed minority votes; most politicians are smart enough not to announce their intentions in public, so litigants need the results test to show the disproportionate harm of racist voting laws absent a smoking gun. Second, in 2013’s Shelby County v. Holder, the Supreme Court dismantled the heart of the VRA: a requirement that states with a history of racist voter suppression obtain permission from the Justice Department or a federal court before altering their election laws. Now that this preclearance requirement is dead, the results test is often the only tool that civil rights advocates can use to combat race-based denial of the franchise.
Shelby County triggered the largest wave of voter suppression measures since Jim Crow, including stringent voter ID laws, cuts to early voting, mass poll closures, and targeted voter purges. Civil rights advocates have managed to defeat a handful of these laws, such as Texas’ notorious voter ID requirement, using the results test. Brnovich, Tuesday’s case, involves two Arizona laws that the 9th U.S. Circuit Court of Appeals struck down using this test. One law nullifies ballots that were cast at the wrong precinct—a seemingly innocuous rule with a huge impact on people of color, because the state moves around precincts in counties with large nonwhite populations much more frequently than it does in predominantly white counties. The other law criminalizes “ballot harvesting,” the derogatory term that Republicans use to describe the collection of absentee ballots by third parties, like community organizers. Both measures, the 9th Circuit found, disproportionately denied the ballot to racial minorities. (While the 9th Circuit also held that the “ballot harvesting” ban was motivated by racist intent, that finding is not the focus of this case.)
But the VRA does not prescribe a mere mathematical formula to determine which voting laws place an unacceptable burden on voters of color. It directs courts to look at “the totality of the circumstances” to see whether the political process is “equally open to participation” by protected groups.
What does this somewhat hazy language mean? That is the question in Brnovitch. The Democratic National Committee, along with Arizona’s Democratic secretary of state, favors a broad reading. They assert that an election law violates the results test when it has a disparate impact on nonwhite voters that is related to “social and historical conditions” affecting them. An utterly foreseeable racial disparity linked to oppression—like, for instance, Arizona’s out-of-precinct rule, which takes advantage of people of color’s diminished access to transportation—is suspect. The Arizona Republican Party, along with Arizona’s Republican attorney general, favors a cramped reading. They say courts must uphold virtually any race-neutral election law under the results test, even if the law exploits an existing disparity between white and nonwhite voters to target the latter.
On Tuesday, Justice Elena Kagan revealed the absurdity of Republicans’ proposed test in a series of brutal questions directed at Michael Carvin, lawyer for the Arizona GOP. Imagine a state cancels Sunday early voting, she told Carvin, even though Black people are 10 times more likely to vote on Sunday than white voters. Would that be legal under the VRA? Yes, Carvin responded. Kagan continued: Imagine a state allows voting only on Election Day and opens the polls exclusively between 9 a.m. and 5 p.m. If voters of one race are 10 times more likely to work a job that prevents them from voting during that time, would that be legal under the VRA? Yes, Carvin answered again. As long as all voters have an equal opportunity to vote in theory, it does not matter if a law mostly harms voters of color in reality.
The consequences of this theory are apparent in statehouses across the country right now. Republican lawmakers are concocting all manner of voter suppression bills that are racially neutral on their face, but obviously designed to stop Black, Latino, and Native American people from voting. They are responding directly to Joe Biden’s victory in the 2020 election, made possible by voters of color in states like, well, Arizona. Carvin echoed Republicans’ claim that these laws don’t actually deny anybody the right to vote but simply require some voters to work a little harder in the name of safeguarding election integrity.
Justice Sonia Sotomayor responded sharply: “If you can’t vote because you’re a Native American or Hispanic in areas where car ownership rates are very small, where you don’t have mail pickup or delivery, where your post office is at the edge of town, so that you require either a relative to pick up your vote or you happen to vote in the wrong precinct, because your particular area has a confusion of precinct assignments—if you just can’t vote for those reasons and your vote is not being counted, you’ve been denied the right to vote, haven’t you?”
Then Justice Neil Gorsuch, who sounded like a speaker at a Stop the Steal rally, came to the state’s defense. “Does Arizona have to wait for fraud to occur in Arizona,” he asked skeptically, before it can prohibit ballot “harvesting”? Is the state allowed to “have some laws that try to prevent fraud in balloting”? Of course, Arizona does ban “fraud in balloting,” and the state has never identified a single case of fraudulent ballot “harvesting.” To Gorsuch, however, the fact that this crime occurred in “at least one election elsewhere” justifies Arizona’s ban on nonfraudulent ballot collection. (Gorsuch was presumably alluding to North Carolina, though that “ballot harvesting” scheme would’ve been illegal under Arizona’s anti-fraud laws.) Justice Samuel Alito, meanwhile, fretted that “every voting rule” might be vulnerable to attack under a robust results test “because people who are poor and less well educated on balance probably will find it more difficult to comply with just about every voting rule than do people who are more affluent and have had the benefit of more education.”
As these questions suggest, it’s pretty clear that Gorsuch and Alito are ready to kneecap the VRA immediately. Thomas, a longtime foe of the law, is also surely happy to strike now. Yet Chief Justice John Roberts, along with Justices Brett Kavanaugh and Amy Coney Barrett, did not appear ready to obliterate the law just yet. These three justices each mused about middle grounds that would allow that court to uphold Arizona’s laws without doing immense damage to the results test in future cases.
Kavanaugh, in particular, seemed supportive of some test that rests on “common sense.” He proposed asking courts to examine whether “a rule is commonplace in other states” and whether it has “a good justification.” So, for example, Arizona’s laws would be fine because other states have similar rules, and they purport to keep elections secure. This standard raises the question of who decides which justifications are good ones; Kavanaugh cited a 2005 report produced by Jimmy Carter and former Secretary of State James Baker as the gold standard. But this report, which condemned vote by mail and praised voter ID laws, was widely criticized among voting rights advocates at the time for buying into Republican myths about fraud. So Kavanaugh’s test would greenlight voting restrictions that civil rights advocates consider useless, harmful, and unjust.
And yet Kavanaugh’s test may be the best progressives can hope for. A decision allowing voting restrictions as long as they’re common and sound commonsensical would dent the VRA—especially since states are currently rushing to crack down on voting rights, expanding the number of racist laws that meet Kavanaugh’s standard. Still, his approach might leave some room for lower courts to invalidate egregiously racist voter suppression laws, and that’s more than a lot of liberals expected from this Supreme Court. There is a larger battle over the VRA looming in the background of Brnovich, one that questions the very constitutionality of the results test. The court did not squarely consider that issue in Brnovich, but it will eventually have to confront it. Once that happens, Tuesday’s case may be remembered, at most, as an early skirmish in the broader war over the remains of the VRA.