Granted, any Supreme Court opinion that begins, “JUSTICE ALITO delivered the opinion of the Court,” is presumptively going to be bad. And the hot commentary that followed on the heels of the issuance of Brnovich v. DNC certainly saw it that way. At Vanity Fair, Cristian Farias wrote that it was “devastating,” and put the Voting Rights Act on “life support.” In the New York Times, prawf Rick Hasen wrote that it put “democracy at risk.”
But my old pal Elie Mystal, in his inimitable way, laid it on the line in The Nation.
Yesterday, in a Supreme Court case called Brnovich v. Democratic National Committee, Justice Samuel Alito told conservatives how to defeat the Voting Rights Act, once and for all. White supremacists don’t have to storm the Capitol to hoard political power anymore. They just have to follow Alito’s instructions.
Did the decision justify this extreme level of outrage? Much of the counter-focus has been on the nature of the Arizona voting rules at issue, requiring people to vote in their designated precincts and prohibiting ballot harvesting. Both rules are fairly common and can be found in “blue” as well as “red” states, even if the particular grievance in Arizona is that it presents problems for people on reservations due to bad mail service and not having cars with which to get to the polls or a mail box. While this seems to be a postal service problem more than a voting problem, their complaint is understandable.
But that’s not really the problem here. Rather, the concern comes after Section 4 of the Voting Rights Act was held unconstitutional in Shelby County v. Holder, which provided that states must obtain federal pre-clearance of any laws affecting voting of minorities, using a formula to determine whether they gave rise to disparate impact. The Court held that state sovereignty precluded a requirement that they get federal bureaucratic permission. Or, from the other perspective, whether states with a history of voter suppression could make rules that enhanced voter suppression without federal interference.
In Brnovich, Section 2 of the Voting Rights Act was in issue.
In 1982, Congress amended the language in §2 that had been interpreted to require proof of discriminatory intent by a plurality of the Court in Mobile v. Bolden, 446 U. S. 55. In place of that language, §2(a) now uses the phrase “in a manner which results in a denial or abridgement of the right . . . to vote on account of race or color.” Section 2(b) in turn explains what must be shown to establish a §2 violation. Section 2(b) states that §2 is violated only where “the political processes leading to nomination or election” are not “equally open to participation” by members of the relevant protected group “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.” (Emphasis added.)
So what did Justice Alito have to say about it?
But the Supreme Court sapped much of Section 2’s juice in Brnovich by erecting a complicated and not exactly intuitive list of “important circumstances” that judges must take into consideration when weighing challenges to voting rules. Alito’s multifactor test goes on for a few pages and runs the gamut: the “size” of the burden on voters, whatever that means; whether “a challenged rule has a long pedigree or is in widespread use in the United States”; how significantly different racial groups are affected by a voting rule; whether a state provides “other available means” of voting outside of the challenged restrictions; and the strength of the justification for the voting restriction—such as preventing fraud, which Alito describes as a “strong and entirely legitimate state interest.”
Cristian makes it sound pretty awful by characterizing Alito’s listing of considerations to be used by a court when reviewing a voting law. Essentially, it provides factors to consider in a balancing test of whether the impact on different racial groups is justified by the legitimacy of the need for the restriction, and whether there are other means available to accomplish the goal that wouldn’t have such a disparate impact.
Hasen points to a more concrete problem.
Thanks to Brnovich, a state can now assert an interest in preventing fraud to justify a law without proving that fraud is actually a serious risk, but at the same time, minority voters have a high burden: They must show that the state has imposed more than the “usual burdens of voting.” Justice Alito specifically referred to voting laws in effect in 1982 as the benchmark, a period when early and absentee voting were scarce and registration was much more onerous in many states.
It is hard to see what laws would be so burdensome that they would flunk the majority’s lax test. A ban on Sunday voting despite African American and other religious voters doing “souls to the polls” drives after church? New strict identification requirements for those voting by mail? More frequent voter purges? All would probably be OK under the court’s new test as long as there are still some opportunities for minority citizens to vote — somewhere, somehow.
And Elie is, well, Elie.
This country has lived under a regime of voting inconveniences before: It was called the Jim Crow South. Trying to guess which day the election was on (time) when the authorities would lie to you was pretty inconvenient. Having to walk halfway across the county to get to the one, barely advertised polling site (place) was pretty inconvenient. And having to prove clairvoyance and guess the number of jellybeans in a jar (manner) was sho’ nuff inconvenient to American citizens trying to exercise their right to vote. It was the Voting Rights Act that tried to put a stop to all that, but now the six conservatives on the court have tried to put a stop to the Voting Rights Act.
The VRA battle is somewhat disingenuous on all sides. Republicans don’t want to expand the opportunity for minorities to vote because, as was conceded at oral argument, it’s bad for them. Democrats, on the other hand, do because it presents an opportunity to get votes from people who wouldn’t otherwise be bothered if they make it easy enough and apply a little pressure.
And so the Voting Rights Act is less a battle about how easy voting should be or whether ordinary and longstanding voting rules suppress minority voting. For the most part, the rules would be largely uncontroversial as fair and reasonable, and the point is made by noting that the same rules exist in many other states without challenge. It would be one thing if a state instituted a poll tax or test before allowing people to vote, but this battle is being waged over whether it’s too much to ask of a voter to vote in the proper precinct, or whether their ballots can be picked up by a neutral party but not harvested by partisans, who are also not allowed to give gifts to voters within 150 feet of the polling place.
This isn’t the end of voting as we know it. Indeed, voting today is far easier than it has ever been in the history of this nation. And yet, the battle rages on because it’s not about voting rights at all, but about winning elections.