Next Tuesday, the Supreme Court will hear two cases that could shred much of what remains of the right to be free from racial discrimination at the polls. The defendants’ arguments in two consolidated cases, Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee, are some of the most aggressive attacks on the right to vote to reach the Supreme Court in the post-Jim Crow era.
These two DNC cases concern two Arizona laws that make it more difficult to vote. The first requires voting officials to discard in their entirety ballots cast in the wrong precinct, rather than just not counting votes for local candidates who the voter should not have been able to vote for. The second prohibits many forms of “ballot collection,” where a voter gives their absentee ballot to someone else and that person delivers that ballot to the election office.
The most important question in the DNC cases isn’t whether these two particular Arizona laws will be upheld or stuck down, but whether the Court will announce a legal rule that guts one of America’s most important civil rights laws. And there is reason to fear that it will. The Supreme Court doesn’t just have a 6-3 Republican majority; it’s a majority that includes several justices who’ve shown a great deal of hostility toward voting rights generally and the Voting Rights Act in particular.
The Voting Rights Act is the landmark law that President Lyndon Johnson signed to end white supremacist election laws in 1965, and that President Ronald Reagan signed legislation expanding in 1982.
Reagan did so over the strident opposition of a young Justice Department lawyer named John Roberts. Roberts wrote more than two dozens memos opposing the 1982 voting rights law, one of which claimed it was “not only constitutionally suspect, but also contrary to the most fundamental tenants [sic] of the legislative process on which the laws of this country are based.”
Four decades later, Roberts isn’t simply the Chief Justice of the United States, he is the most moderate member of a six justice conservative majority — and his Court has already taken two significant bites out of the Voting Rights Act.
The Biden administration filed a letter with the Supreme Court on February 16, which suggests that the two Arizona laws in question do not violate a key prong of the Voting Rights Act. So there are reasonable arguments that the Court should allow the two state laws to stand. But again, the most important question in these cases isn’t what happens to the Arizona laws. It’s whether the Supreme Court waters down what remains of the Voting Rights Act to such an extent that it becomes virtually worthless.
Race discrimination by election officials and by election lawmakers won’t necessarily become legal, but plaintiffs seeking to enforce the federal ban on such discrimination could face such daunting hurdles that they’ll have little chance of prevailing in any important lawsuit.
In the DNC cases, the Supreme Court could turn its back on the commitment to pluralistic democracy that President Johnson signed into law more than half a century ago, and usher in a new era where states are free to discriminate against voters of color — voters, it’s worth noting, who tend to favor Democrats over Republicans — so long as those states make the most minimal efforts to make discrimination appear racially neutral.
The Supreme Court’s assault on the Voting Rights Act, briefly explained
Broadly speaking, the Voting Rights Act provided three safeguards against racist election laws.
Section 5 of the law required states and local governments with a history of racist voting practices to “preclear” any new election rules with officials in Washington, DC — the idea was to stop these laws from going into effect before they could disenfranchise anyone.
Section 2, meanwhile, provides two separate protections against discrimination. If a plaintiff can show that an election law was enacted for the purpose of making it harder for voters of a certain race to vote, then that law violates the Voting Rights Act’s “intent test,” and should be struck down.
At the same time, the Voting Rights Act also prohibits any state law that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” So even if a particular law was not enacted with racist intent, it still may be struck down if it violates this “results test,” which prohibits some state and local election rules that have disproportionate impact on voters of color.
Roberts played a significant role in trying to incapacitate this “results test” decades ago. In 1980, in City of Mobile v. Bolden, the Supreme Court held that an older version of Section 2 required plaintiffs to prove that lawmakers acted with “racially discriminatory motivation” in order to win their case. So the Court effectively ruled that there was only an intent test under Section 2, and no results test.
While Congress was debating legislation to amend Section 2 and write the results test into the law, a conservative faction within President Reagan’s Justice Department urged him to veto such a bill. Though Roberts was still a junior lawyer at this point, he became the conservative faction’s point person on this issue, drafting memos, prepping more senior attorneys, and working with senators who believed that the Mobile decision should stand.
Ultimately, however, Reagan rejected the conservative faction’s arguments and signed the amendments to Section 2. Over Roberts’s objections, the results test was explicitly written into the US legal code.
Ironically, given Roberts’s history, this prong of the Voting Rights Act has fared much better in the Roberts Court than preclearance and the intent test. The DNC cases could change that.
In Shelby County v. Holder (2013), the Supreme Court effectively deactivated Section 5’s preclearance regime. Although Shelby County did not strike down Section 5 altogether, it did strike down the formula that the Voting Rights Act used to determine which states and local governments are subject to preclearance — thus stripping those state and local governments of their obligation to comply with the preclearance regime.
Then, in Abbott v. Perez (2018), the Court took a similar swipe at Section 2’s intent test. Like Shelby County, Perez did not strike down the intent test altogether. But it held that lawmakers enjoy such a strong presumption of racial innocence that voting rights plaintiffs will struggle to prove racist intent in all but the most egregious cases.
The DNC cases primarily involve the third arm of the Voting Rights Act: Section 2’s results test. And, like Shelby County and Perez before them, the DNC cases are unlikely to produce a majority opinion striking down the results test in its entirety (although such an outcome is possible). But the parties seeking to limit the results test, which include Arizona’s Republican attorney general and the Arizona Republican Party, propose such rigid limits on that test that they would render it virtually useless.
The case is all the more complicated because the Court’s existing cases applying the results test are, to say the least, unwieldy, and could benefit from simplification. But the current Supreme Court is less likely to streamline the results test than to nuke it from orbit. And, after the Court’s decisions in Shelby County and Perez, that means that the Voting Rights Act could become a brittle shell of its former self.
How the DNC cases could gut the results test
Current law governing the Voting Rights Act’s results test is a mess. If a state election law imposes a disproportionate burden on voters of color, the Supreme Court explained in Thornburg v. Gingles (1986), a court must determine whether the state law “interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by [minority] and white voters to elect their preferred representatives.”
To determine whether such “social and historical conditions” exist, Gingles advises courts to weigh nine different factors, such as “the extent of any history of official discrimination in the state,” “the extent to which voting in the elections of the state or political subdivision is racially polarized,” and “whether political campaigns have been characterized by overt or subtle racial appeals.”
It’s an absurdly complicated process (and the preceding two paragraphs present an overly simplified description of what Gingles calls for), so it’s understandable if the Court’s current members may want to scrap Gingles and replace it with something else. In the DNC cases, however, both Arizona’s Republican attorney general and the Arizona Republican Party ask the Court to impose so many limits on the results test that states would gain sweeping new authority to enact racist election laws.
The Arizona Republican Party’s brief claims that “race-neutral regulations of the where, when, and how of voting do not implicate § 2.” Taken to its logical extreme, this rule would give states virtually limitless power to suppress voting by imposing restrictions on the “time, place, or manner” where elections are held.
Suppose, for example, that Arizona passed a law providing that “all votes must be cast in a single precinct, which shall be located in the single wealthiest neighborhood in the state.” Such an absurd law could prevent millions of people from casting a ballot, and it would undoubtedly have an outsized impact on voters of color. But, under the state GOP’s framework, this hypothetical law would not violate the Voting Rights Act because it merely regulates the “where” of voting.
Perhaps recognizing that the strongest version of its proposed rule is untenable, the state GOP’s brief does suggest that only “ordinary” restrictions on “the time, place, or manner of voting” are permissible. But the brief provides no definition of the word “ordinary,” and it proposes no legal framework that could be used to distinguish “ordinary” restrictions from extraordinary ones.
Arizona Republican Attorney General Mark Brnovich suggests replacing Gingles with a more workable two-step test, at least in cases alleging outright denial of the franchise. (Brnovich, for what it’s worth, suggests that Gingles should still apply to “vote-dilution cases,” but not to cases where voters are allegedly denied the right to vote altogether).
But Brnovich’s two-step test would also severely weaken the Voting Rights Act. He argues first that a plaintiff seeking to prevail under the results test must show that the challenged law “causes a substantial disparity in minority voters’ opportunity to vote and to elect their preferred candidates.” It’s unclear just how great this disparity needs to be in order to be “substantial,” but the facts of the DNC cases suggest that it would have to be quite substantial indeed.
A federal appeals court found that Arizona’s requirement that ballots cast in the wrong precinct must be tossed out caused 3,709 voters to be disenfranchised in 2016. And Native American, Hispanic, and African American voters were twice as likely to vote in the wrong precinct as white voters. But Brnovich argues that this level of disparity is not “substantial.”
If a court determines that an election law does create a “substantial disparity,” Brnovich then argues that the plaintiff must prove that this election law caused the disparity, but he would also impose an extraordinarily high burden on plaintiffs seeking to prove causation. “There is no causal chain between the out-of-precinct policy and the alleged disparate impact,” in the DNC cases, Brnovich claims, because “the fact that a ballot cast by a voter outside of his or her assigned precinct is discarded does not cause minorities to vote out-of-precinct disproportionately.”
Think about this claim for a second. Brnovich is arguing that, if a state takes advantage of a preexisting disparity between white and nonwhite voters, in order to limit voting by racial minorities, the state’s actions are lawful unless the state caused the disparity to exist.
A state could, for example, attempt to limit the franchise to country music fans — on the theory that white people are more likely to listen to country music than people who are not white — and such a restriction wouldn’t violate Brnovich’s theory of the Voting Rights Act unless the state actually caused non-white people to prefer other genres of music.
Or, to give a more realistic example, in 1890, the state of Mississippi enacted a literacy test for voters. It was a major attack on African American voting rights because, at the time, only 7.7 percent of white voters in the United States were illiterate, while nearly 57 percent of Black voters were. Yet, under Brnovich’s framework, such a literacy test wouldn’t violate the Voting Rights Act’s results test because the fact that illiterate citizens couldn’t vote did not cause the majority of Black citizens to become illiterate (though a literacy test would still violate other provisions of the law).
Either the GOP’s framework or Brnovich’s, in other words, would wind up legalizing extraordinarily restrictive attacks on the franchise.
Why these cases are so important
One of the more surprising stories in the 2020 election is that Trump increased his vote share among some communities of color, as compared to performance in 2016. Trump performed well among Cuban immigrants in Florida, and early data suggests that Trump also gained a higher share of the Black vote in 2020 than he received in 2016.
National exit poll data is hard to compare from year to year, especially with the pandemic. But it suggests that voting pattern changes among people of color overall were influential, though not huge. In 2020, according to CNN exit polls, President Joe Biden still won 87 percent of Black voters, 65 percent of Latino voters, 61 percent of Asian voters, and 55 percent of other nonwhite voters.
That means that Republican lawmakers can use race as a proxy to identify voters who are likely to vote for Democrats. If a Republican legislature shuts down a bunch of precincts in Black neighborhoods, leading to long lines in those neighborhoods, those lawmakers can be pretty confident that the overwhelming majority of voters who are repelled by the long lines will be Democrats.
And there is little doubt that Republican state lawmakers will be aggressive in targeting voters of color if the Court dismantles what remains of the Voting Rights Act. In the wake of Shelby County, for example, North Carolina’s GOP-controlled legislature passed omnibus legislation which combined many different provisions making it harder to vote in that state. As a federal appeals court later explained in an opinion striking down much of this law, it was written to target “African Americans with almost surgical precision.”
According to the appeals court, state lawmakers “requested data on the use, by race, of a number of voting practices.” It then used the data to help ensure that the law would be especially likely to discourage Black voters from casting a ballot, while simultaneously having a smaller impact on whites.
The data showed, for example, that African Americans are especially likely to vote on Sundays — largely due to “souls-to-the-polls” events sponsored by Black churches — so the law eliminated one of the two Sundays when North Carolina had allowed voters to cast early ballots. Data also indicated that Black voters were more likely to use certain forms of ID, such as student IDs or public assistance IDs, so the state didn’t just enact a law requiring voters to show ID at the polls, it prohibited those voters from using IDs that were more likely to be used by African Americans.
In a world without an effective Voting Rights Act, laws like this will thrive and metastasize. Republican lawmakers will grow increasingly skilled at drafting laws that target Democrats of color. And the Supreme Court, if it embraces the arguments advanced by Brnovich or the Arizona Republican Party, will do little more than shrug at these laws.
The task of sniffing out racist election laws is often difficult. And, as the complex analysis laid out in the Gingles case suggests, it is often hard to detect such a law without diving deep into a state’s history, its demographics, and the subtle effects that different voting rules can have on diverse communities. Even judges who operate in good faith may find it challenging to root out every law that, in the words of the Voting Rights Act, “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”
But the current Supreme Court appears less interested in doing this difficult-but-important work than it is in shrinking the Voting Rights Act to oblivion. The right to vote may be in greater peril today than at any point in decades, and court battles like Shelby County, Perez, and the DNC cases are why.