Jurisprudence

How the Supreme Court Could Supercharge the GOP’s Voter Suppression Agenda

A new case could open up the door to unapologetic discrimination.

Voters wait in a spaced-out line outside a theater on a sunny day.
Voters wait to cast their ballots at Marquee Theatre on Nov. 3 in Tempe, Arizona. Courtney Pedroza/Getty Images

Sometime later this year, the U.S. Supreme Court will hand down its decision in Brnovich v. Democratic National Committee, a case that Republicans very much hope will grind what little remains of your right to vote into a fine, democracy-tinged dust.

Brnovich is about two Arizona laws: one that tosses out provisional ballots cast outside a voter’s assigned precinct on Election Day and another that prohibits most third-party groups, like campaign volunteers, from going door to door to return voters’ completed absentee ballots. Last year, the 9th U.S. Circuit Court of Appeals struck down these laws under Section 2 of the Voting Rights Act, finding that they make it more difficult for Black, Hispanic, and Native Arizonans to vote. Now, Arizona and the Arizona Republican Party—a party that just watched in horror as President Joe Biden won their state by about 10,000 votes—hope the justices will decide otherwise.

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Much of the coverage of Brnovich, including my own, has centered on how much damage the court will inflict on the Voting Rights Act’s “effects test,” which applies to seemingly neutral laws that nonetheless disproportionately affect minority voters. Since the court’s 2013 decision in Shelby County v. Holder, the effects test has emerged as the last, best tool for enforcing the Voting Rights Act.

The effects test isn’t all that’s at stake, though. Also before the justices is the appeals court’s finding that the ballot collection ban’s impact is not an accident—that Arizona lawmakers actually intended it to disenfranchise voters of color. In Brnovich, the court’s conservatives could insulate this sort of unapologetic voter suppression from legal scrutiny for good.

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The timing couldn’t be better for conservatives: Across the country, revanchist Republicans are working to pass literally hundreds of anti-democracy bills that target minority voters, drafting off Donald Trump’s outraged insistence that fraud cost him the 2020 election.

The goal of this movement—to craft a narrower electorate likely to flip Congress and the White House in 2022 and 2024, respectively—is not subtle. “Everybody shouldn’t be voting,” John Kavanagh, a Republican member of the Arizona House, told CNN earlier this month, explaining his support for a proposal to purge the state’s early voter list. “Quantity is important, but we have to look at the quality of votes, as well.”

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Like many states, Arizona has a long history of excluding people of color from democracy. In the early 20th century, officials designed English-language literacy tests to keep Hispanic residents off the voter rolls—a test the legislature didn’t repeal until 1972. Between 1928 and 1948, an Arizona Supreme Court decision prevented Native people from voting altogether. In the 1960s, a Republican Party initiative known as “Operation Eagle Eye” challenged the qualifications of minority voters at polling places in the name of “ballot security.” Among the participants, witnesses said, was a young lawyer named William Rehnquist, who would go on to serve as Chief Justice of the United States.

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The fight over absentee ballots is newer, but the dynamics that inform it are not. Before the Republican-controlled legislature enacted the ban in 2016, ballot collection had become a key get-out-the-vote tool in poor, remote, or predominantly minority communities where many Democratic voters live—and where voting is especially difficult. In urban areas where mail theft is common, volunteer collection enabled voters to cast a ballot without risking its disappearance. Outside the state’s two most populous counties, just 18 percent of Native voters have access to home mail service. Native voters who live on reservations sometimes must travel two hours to the nearest mailbox, and between a quarter and half of households don’t have access to a car. Ballot collection relieves some of Arizona’s most marginalized residents of the burden of embarking on hours-long journeys just to cast a vote.

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This feature of ballot collection, of course, meant that Republicans spent the better part of a decade trying to get rid of it. In 2011, an earlier, less restrictive version of the ban was functionally blocked under the Voting Rights Act’s “preclearance” system, which Chief Justice John Roberts and the conservatives would hollow out two years later in Shelby County. In 2013, Republicans passed a revised version, only to hastily repeal it after incensed Arizonans organized a referendum that, if successful, would have limited lawmakers’ ability to meddle with ballot collection in the future.

Lingering throughout debate over the bans were the antics of a now-former state lawmaker, Don Shooter, who made something of a name for himself by doggedly—and falsely—claiming that the ban was essential to stamping out fraud. Shooter’s passion for the issue correlated strongly with how he perceived his own job security: In a 2010 race he won with just 53 percent of the vote, Shooter secured 83 percent of the nonminority vote, but only 20 percent of the Hispanic vote. In a remarkable coincidence, he proposed the ban the following year even though, as the 9th Circuit noted, there was no evidence that ballot collection fraud in the state has ever taken place.

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Shooter’s proffered rationales were equal parts wild and weak. “We don’t want people playing with our ballots,” he explained to the state House Appropriations Committee in 2015. But when asked for examples of such nefarious misconduct, the Arizona Republic reported, “all Shooter could offer was an unsubstantiated anecdote about people popping ballots into a microwave with a bowl of water, steaming them open and reviewing the contents.” His most recent stint in politics ended in 2018, when the Arizona House of Representatives expelled him after multiple women came forward with allegations of sexual misconduct.

Also key to the ban’s passage, the 9th Circuit found, was some good old-fashioned agitprop. In 2013, Maricopa County Republican Party chair A.J. LaFaro cobbled together some ominous-looking footage of an apparently Hispanic man—perhaps undocumented, LaFaro helpfully noted, and certainly a “thug”—purportedly stuffing a ballot box. LaFaro’s commentary also warned of “ballot parties” where people handed over ballots for completion by malevolent political operatives, and the video was widely circulated in right-wing media outlets and used in a Republican secretary of state candidate’s attack ads as indicative of a burgeoning, unaddressed crisis.

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Together, Shooter’s crusade against the scourge of microwaved ballots and LaFaro’s foray into bigotry-tinged filmmaking helped create a vibrant culture of election fraud paranoia among Republicans. Ballot collection, declared state Rep. Michelle Ugenti-Rita in 2016, “increases the opportunity for fraud to exist.” Republican lawmaker J.D. Mesnard explained his support for the ban by appealing not to the veracity of the purported problem but instead to rapidly metastasizing fears of its existence. “What is indisputable is that many people believe it’s happening,” he said. “And I think that matters.”

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At the Supreme Court, Arizona and the Arizona GOP urged the justices to treat this history as if it did not exist. “Evidence of how legislators came to a particular, good-faith, non-discriminatory motivation cannot taint that motive or the resulting bill,” the party writes. In other words, as long as lawmakers like Mesnard believed they were acting to, say, safeguard election integrity—even if they arrived at that objectively wrong belief after absorbing a series of racist lies—the ban can’t be illegal.

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This is the precise logic Republicans are deploying as they work to overhaul the voting rules that just led to the highest turnout in over a century. For the most part, proponents of these anti-democracy bills don’t actually assert that voter fraud took place; instead, they explain, they’re acting because their constituents think voter fraud took place, and who are they to ignore the people who elected them? In Georgia, where a surge in participation among Black voters helped send two Democratic senators to Washington, Republicans pushing a slew of restrictive new laws say they wanted to “restore confidence in the ballot box.” In Wisconsin, another state Trump won in 2016 but lost in 2020, lawmakers cite a solemn responsibility to “ensure uniformity of process and transparency of conduct so all voters, regardless of political belief, trust the final outcome.”

“I will never apologize for giving voice to the millions of Missourians and Americans who have concerns about the integrity of our elections,” said Missouri Sen. Josh Hawley, one day after a mob of Trump supporters stormed the U.S. Capitol building in a last-ditch effort to stop the election certification process. “That’s my job, and I will keep doing it.”

The perversity of Republicans bemoaning this supposed loss of faith is that it is the product of the party’s purposeful efforts to bring it about. Using tales about shadowy, democracy-hijacking plots to disenfranchise marginalized people is among the oldest tricks in American politics. Well before Election Day, Trump was warning of a “rigged” contest that would take its place among the “most fraudulent elections ever.” Since then, Trump and company have parroted this lie so many times that it has become an article of faith for party leaders and supporters alike: A Quinnipiac poll conducted earlier this year found that some three-quarters of Republicans believed the 2020 election was tainted by “widespread” fraud. The line between pretextual fearmongering about the supposed dangers of voter fraud and sincere belief in their existence—to the extent such a line ever existed—is vanishingly thin.

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Republican lawmakers have been laying this groundwork for months. Securing the Supreme Court’s formal endorsement, however, would launder their rhetoric using bone-dry legalese, allowing the success of the party’s cynical misinformation campaign to justify the party’s voter suppression agenda. At oral argument, the conservative justices seemed ready to buy it, sometimes invoking talking points about speculative dangers and worst-case scenarios that would not be out of place in a Tucker Carlson monologue. “Does Arizona have to wait for fraud to occur in Arizona using a practice before it can outlaw it?” asked an incredulous Justice Neil Gorsuch, as if a law’s benign implementation anywhere could excuse its discriminatory implementation everywhere else.

In a particularly telling exchange with the Democratic National Committee’s lawyer, Roberts acknowledged the existence of Shooter’s troubling comments but quickly brushed off their real-world impact. The evidence of racist intent, he opined, is “really quite limited” in this matter. “Is there any evidence of other legislators other than Mr. Shooter?” he asked.

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For all his faults, Roberts is certainly capable of reading briefs and knows that Shooter’s legacy is just one piece of the puzzle here. But to the chief justice, none of the context matters—not the LaFaro video’s permeation of Republican politics, or the conspicuously start-and-stop nature of the GOP’s disenfranchisement efforts, or the state’s shameful track record of marginalizing nonwhite voters. Nothing matters, apparently, except the publicly stated positions of the specific elected officials who voted to enact the ballot collection ban into law.

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This logic badly misconstrues how racist disenfranchisement works: Obviously, lawmakers need not discriminate explicitly in order to act intentionally. From poll taxes to literacy tests to white primaries to voter ID laws to voter roll purges to decades of outright violence in the Jim Crow South, the tools of voter suppression have always been inextricably bound up with the preservation of racial hierarchy. Allowing unfounded fears of fraud to justify voter suppression would absolve politicians of their complicity in this tradition, and place the GOP’s vested interest in perpetuating it beyond the law’s reach, so long as most of its members remember to keep the quiet part quiet.

The Voting Rights Act’s slow death is not a fluke. It is the payoff for a conservative legal project whose dominance of the federal bench allows it to cast reactionary policy choices as the inevitable outcomes of legal processes. For anyone who aspires to live in a representative democracy, the simple fact that the stakes in Brnovich are the precise types of permissible infringements on nonwhite Americans’ right to vote is already a giant loss.

What conservatives understand is that the power to shape the electorate is the power to accomplish everything else on their agenda. Roberts and company have no interest in honest debate about what the Voting Rights Act means, because their purpose is to deliver answers to those questions that keep themselves and their allies in power. The result is a legal system where disenfranchisement is just a routine part of the political process, and every opportunity to pare back voting rights is a question not of if, but of how much, how quickly. This is the most insidious feature of voter suppression in America: Eventually, it feels so ordinary that you might not even notice.

Update, March 25, 2021: Due to an editing error, an unfinalized draft of this piece was originally published. It has since been updated.

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