On Thursday, the Supreme Court released its opinion in Brnovich v. DNC, effectively dismantling what remains of the Voting Rights Act. The 6–3 ruling marks yet another blow to equal suffrage, and is the latest in a long line of decisions greenlighting voter suppression laws. By now, everyone should know that the Supreme Court’s conservative supermajority is hostile to the franchise. But just how bad is Brnovich in the grand scheme of reactionary SCOTUS decisions? To contextualize the ruling, we’ve created a system that ranks Supreme Court opinions against previous rulings across three criteria: radicalness, cruelty, and scope of impact.
Brnovich takes aim at the heart of the VRA as it operates today: the “results test” in Section 2. Like the 15th Amendment, the VRA bans voting restrictions enacted with racist intent—but Congress understood that legislators rarely admit they are trying to stop racial minorities from voting. So, in 1982, it added the results test, which prohibits any law that “results in a denial or abridgement” of the right to vote on account of race. This test clarifies that an election must be “equally open to participation” by all races, and that racial minorities have equal opportunity to participate.
For years, courts have interpreted this test to mean what it says: A law that disproportionately burdens racial minorities’ access to the ballot violates the VRA. For instance, an appeals court struck down a Texas voter ID requirement that made it substantially harder for Black and Latino people to vote under the VRA’s results test. In Brnovich, however, Justice Sam Alito rewrote this test to deprive it of virtually any power. Alito held that voter suppression laws with a disproportionate impact on racial minorities are not inherently unlawful. Rather, as long as minorities have some other opportunity to vote—at least in theory—a law that violates the results test will generally still pass legal muster. Alito further held that courts should assume laws that were common in 1982 are legal today. Most states severely restricted early and absentee voting in 1982, so Brnovich all but guarantees that states can cut back early and absentee voting without fear of the VRA.
In her dissent, Justice Elena Kagan condemned Alito’s opinion as “a law-free zone.” We think that’s exactly right. The court replaced the actual VRA—a law passed with overwhelming bipartisan support by the democratic branches—with an empty promise. And it did so at a time when, as Kagan put it, “too many states and localities are restricting access to voting in ways that will predictably deprive members of minority groups of equal access to the ballot box.” We therefore rank Brnovich as VERY RADICAL. But it’s not as radical as the Supreme Court’s last major blow to the VRA, 2013’s Shelby County v. Holder. In Shelby County, the court invented an incoherent constitutional principle to rip out the heart of the law: a requirement that new voting restrictions in historically racist states receive preclearance from the Justice Department. Shelby County was a near-fatal blow to the VRA. Brnovich essentially finished the job.
Brnovich blatantly favors Republican legislators racing to restrict access to the ballot in the wake of the 2020 election. It will swiftly reverberate across minority communities, especially those in GOP-controlled states like Georgia and Arizona. The court gave lawmakers a much freer hand to target minority voting under the pretext of preventing fraud. Judges can now uphold laws that disproportionately stop nonwhite people from casting a ballot. There are countless stories of Black and brown Americans who are disenfranchised by the kind of laws that SCOTUS blessed in Brnovich; many lack the documentation necessary to acquire an ID, for instance, and are stripped of the right to vote by stringent voter ID requirements. Some elderly Black Americans literally cannot obtain this documentation because Jim Crow states didn’t care about preserving Black people’s vital records. As a consequence, they can no longer participate in elections. To them, the Supreme Court says: Too bad.
The cruelty isn’t necessarily the point here, but it is a byproduct of the conservative justices’ cynical attitude toward voter suppression measures. Brnovich isn’t as vicious as, say, Bowers v. Hardwick, which upheld the criminalization of sodomy; it’s about on par with Ledbetter v. Goodyear, which carved a loophole into laws requiring equal pay for women. Congress overturned Ledbetter through legislation, but it seems increasingly unlikely that Congress will do the same for Brnovich. We therefore deem Thursday’s decision FAIRLY CRUEL.
The impact of Shelby County, while severe, was limited to the area covered by preclearance—nine states and multiple counties in several other states. Brnovich, by contrast, affects the entire country. The VRA’s results test applies nationwide, which is part of what made it such a powerful tool in the fight against voter suppression. By disassembling it, SCOTUS has deprived millions of Americans of this crucial protection, while Republicans are rushing to crack down on the right to vote. This will have a cumulative impact on millions of Americans throughout the country, and the Supreme Court just ensured most if not all of these GOP measures will survive legal challenges. Brnovich affects substantially more people than recent notorious decisions like Burwell v. Hobby Lobby, whose impact was limited to employees of companies that oppose contraception. There are, after all, tens of millions of minorities who may now face even greater barriers on the ballot. Put simply, Brnovich will affect A WHOLE LOT of people.