It’s been almost a week since the Supreme Court issued its most significant ruling on voting rights in nearly a decade, and each time I read Justice Samuel Alito’s majority opinion in Brnovich v. Democratic National Committee, the angrier I become. I’m angry not only about what the court did but also about how much of the public does not realize what a hit American democracy has taken. In an opinion thick with irony, Justice Alito turned back the clock on voting rights to 1982. His decision for a six-justice conservative court majority reopens the door to a United States in which states can put up roadblocks to minority voting and engage in voter suppression with few legal consequences once a state has raised tenuous and unsupported concerns about the risk of voter fraud. It’s exactly the opposite of what Congress intended when it strengthened Section 2 of the Voting Rights Act in 1982, and it turns on its head the “non-retrogression” principle that Congress wrote in Section 5 of the act and that the court essentially killed off eight years ago in Shelby County v. Holder.
To understand exactly how perverse Justice Alito’s Brnovich decision is, let’s begin with a description of the two key parts of the Voting Rights Act that have been bludgeoned by the Supreme Court. A key component of the act that Congress passed in 1965, Section 5, required states and localities with a history of racial discrimination in voting to ask either the U.S. Department of Justice or a three-judge court in D.C. for permission to change any voting rule. This “preclearance” rule required these jurisdictions show that minority voters were not made worse off by the change; the intention was to prevent states from passing new restrictive voting rules when courts struck down old ones. The idea behind preclearance was to prevent backsliding to worse conditions for voting, an idea that came to be known as the “non-retrogression” principle. It froze in place laws at the time a jurisdiction became subject to preclearance, ensuring that things would not get any worse.
Section 5 helped a lot until the Supreme Court in Shelby County held that it was no longer constitutional because it infringed on an entirely invented “equal sovereignty” principle. One thing Section 5 did not do, though, was deal with bad voting laws already on the books. So if a state that already had laws making it hard to register to vote at the time it came under preclearance did not change its laws, Section 5 could not touch it. In the years after the initial Voting Rights Act, some litigants tried to use another part of the act, Section 2, to attack these restrictive voting rules that were already in place. At first the Supreme Court agreed that these challenges could go forward, but in 1980’s City of Mobile v. Bolden case, the court held that such challenges under Section 2 required proof of intentional discrimination.
Congress disagreed with the Supreme Court’s interpretation of Section 2, and in 1982 Congress passed a revised Section 2. This revision came despite fierce opposition from the Reagan administration and the president’s point person on the issue, John Roberts, who now happens to be the chief justice of the Supreme Court. The revision made clear that plaintiffs challenging voting rules did not have to prove that a jurisdiction acted with an intent to discriminate against minority voters; it was enough to show that “the political processes leading to nomination or election in the State or political subdivision are not equally open to participation” by members of a protected class “in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” The 1982 amendment to Section 2 created a broad statute in which Congress told courts to look at the “totality of the circumstances” in deciding whether a law gave minority voters “less opportunity” than white voters to participate and elect. Among the factors in the totality of the circumstances were the socioeconomic factors that could make minority voters face extra barriers to voting, and the tenuousness of the supposedly neutral justifications states could advance for passing restrictive voting rules.
Although the Supreme Court interpreted Section 2 many times in the context of redistricting cases, until Brnovich, the court had never interpreted the issue in vote denial cases, where a state or locality makes it harder for minority voters to register and vote. (This was in part because for many years, Section 5 did such a good job of preventing states from passing restrictive voting measures that might require analysis under Section 2.) Lower courts had read Section 2 in this context to set forth a tough standard for overturning a state law, but one that could be met in some circumstances. The 5th Circuit, for example, one of the most conservative courts in the country, held that Texas’ very strict voter identification law violated Section 2; when Texas eased its law in response to the litigation, the 5th Circuit held it no longer violated the statute.
Justice Alito’s opinion for the court in Brnovich, ignoring the text of the statute, its comparative focus on lessened opportunity for minority voters, and the history that showed Congress intended to alter the status quo and give new protections to minority voters, essentially offered a new and impossible test for plaintiffs to meet to show a Section 2 vote denial claim. It’s worth focusing on two of the five “guideposts” that Justice Alito offered for courts evaluating Section 2 vote denial claims. (In truth, these are less guideposts and more roadblocks looking to stop plaintiffs at every turn when they assert their Section 2 claims.)
One of the guideposts specifically tells courts to compare the voting restrictions being challenged in a Section 2 case to the burdens of voting as they existed in 1982. This is the flip side of the old Section 5 nonretrogression principle, because it tells states that they can roll back voting restrictions to a time when registration was onerous, and early and absentee voting rare.
So imagine a state passes a law barring early voting on the Sunday before Election Day, because white Republican legislators know that reliably Democratic Black voters often run “souls to the polls” events to take church-going voters straight to vote after services. While a challenge to such a rollback under Section 2 had a good chance of going forward before, how could it survive the 1982 benchmark now, when Sunday voting, and early voting as a whole, was rare?
Another guidepost is the strength of the state’s interests underlying an election rule. This turns Section 2’s “tenuousness” factor on its head. Under Section 2 as intended, if a state passed a restrictive voting law and claimed it was necessary to stop voter fraud, the state would have to prove that this was the real justification and not a pretext for discrimination. It would have to offer real evidence of fraud. But Justice Alito’s opinion repeatedly says voter fraud is a risk, even though Arizona could not point to any fraud to justify its challenged laws. States don’t have to prove fraud at all. It is a license to give tenuous excuses, excuses Republican legislatures are increasingly likely to give in the era of the “big lie” that the 2020 election was stolen from Trump.
The court’s decision in Brnovich to give a pass to states in not having to provide evidence of fraud but to require plaintiffs to show much more than the “usual burdens of voting” stands in sharp contrast to what the court did in another opinion issued the same day as Brnovich, Americans for Prosperity Foundation v. Bonta. That case concerned a California law that required charities to disclose their donors not to the public, but to the state for law enforcement purposes. In that case, the plaintiffs were conservative organizations, and the court held that plaintiffs need to put forward no real evidence that compelled disclosure “chilled” their First Amendment rights, but it required the state to come forward with tons of evidence that its disclosure requirement was “narrowly tailored” to serve “substantial” state interests.
There’s no getting around the reality that the new Supreme Court has its conservative favorites and its progressive enemies, and that the court stands ready to recraft American democracy in its image.
Justice Alito and the other conservative justices are leading the United States back to a time when racial discrimination in voting was easy, voting lawsuits hard, and political activity conducted behind a veil of secrecy. That probably fills Justice Alito, who has long shown hostility to voting rights, with nostalgia. Those may have been the good old days for him, but they were days of continued discrimination against minority voters for much of the country.
Correction, July 8, 2021: Due to a photo provider error, the caption on this article originally misspelled Elena Kagan’s first name.