While many American today are celebrating the anniversary of the issuance of the Declaration of Independence, the United States Supreme Court spent this week giving a green light to Republican attempts to cook the ballot box. Forty years ago, both parties supported the Voting Rights Act. Democrats wanted to increase minority representation in government, and Republicans realized that compliance with the Voting Rights Act made it easier for them to pack Democrats into “minority” districts and, thereby, make swing districts lean Republicans.
But drawing district lines is merely one way to reduce minority influence. And, most importantly, district lines play no role in state-wide race. To reduce minority influence in state-wide races, you need to keep minorities from voting. And, while the Voting Rights Act clearly bars the blatant techniques like literacy tests which can be directed at minority voting, the question has remained about techniques which merely make it more difficult for minorities to vote.
Unfortunately, we now have a generation of Republican lawyers who have been hostile to the Voting Rights Act in the majority on the Supreme Court. And we saw the results this week in a decision out of Arizona — Brnovich vs. Democratic National Committee. This is not the first time that the issue of the meaning of Section 2 and the test that Congress wants the courts to use in analyzing Section 2 claims has been before the Supreme Court. The original version of Section 2 merely barred practices which states were using to abridge the right of minority groups to vote. After the Supreme Court interpreted that provision as only barring practices upon proof of a discriminatory intent, Congress amended Section 2 bar practices which “result” in the abridgment of the right of minorities to vote.
By focusing on result, the language of Section 2 clearly intends for courts to consider the impact of a practice on minority groups. Faced with this clear Congressional intent and the plain meaning of the text, Brnovich focused on how the court should analyze whether minorities had proven such an impact. And the six conservative justices found a way to give lip service to the text while ignoring reality. Rather than proposing any specific test, Justice Alito writing for the majority came up with a group of factors that simply ignores reality. In key part, the Supreme Court emphasizes the references to the totality of the circumstances and the “opportunity” to participate in political processes but pays minimal attention to the fact that — in the real world — not all opportunities to participate are equally valuable to different groups.
The majority frames the issue in the case as involving facially neutral time, place, and manner restrictions. (It should be noted that the very justices pushing for a relaxed standard for facially neutral laws impacting voting rights are wanting to eliminate that relaxed standard when the law impacts religious liberty.) And, consistent with the practices of the conservatives when it comes to protecting rights that liberals like, the first factor that Justice Alito and his conservative colleagues direct courts to look at is the degree to which the regulation burdens the opportunity to vote. As we have seen in abortion cases, this substantial burden test makes it rather hard for plaintiffs to challenge laws that are intended to make it harder for individuals to exercise their rights as conservative judges invent reasons why the burden is insubstantial.
The second factor is crucial for the majority position and ignores reality. It looks back to 1982 when the current version of Section 2 was adopted. Under this factor, if a new law is consistent with laws that were allowed in 1982, that is an argument in favor of finding that the law does not violate Section 2. But many election practices have changed since 1982. And legislators can see the impact of those changes — which voters use certain tools and which voters do not. While a legislature can, after adopting a change, decide that it is not a useful change and repeal it, Section 2 is designed to prevent the legislature for picking and choosing and only keeping the changes that are used by majority citizens and repealing all of the “new” opportunities that seem to increase turnout by minority voters. In other words, Section 2 was not intended to set election law in stone.
The next factor is the degree of impact. This factor, viewed in isolation, and liberally interpreted is not that bad. For example, if there is almost no difference in how a proposal impacts the turnout of different demographic , then there is no disparate impact. But, in the real world, it will matter how much disparity is too much. In elections, a 1-2% different in turnout is not minimal.
The fourth factor is other opportunities to vote. This factor is marginally defensible on paper. But, the problem will be the real world application. There are lots of opportunities to vote. But an “absentee” vote program that requires election officials to have early voting precincts open between 1 and 4 p.m. on weekdays — while nominally open to everybody — is not as open to those who have 9-5 jobs as one that has evening voting hours and weekend hours.
The final factor is the state’s interest. And there should be no surprise here. Despite the lack of evidence of fraud, the conservative majority finds that preventing fraud is a substantial interest and does not place much of a burden on the state to tailor their anti-fraud efforts to proven fraud.
The majority is quite clear, that despite, the plain language of Section 2 which seems to focus on disparate impact, the majority rejects that reading of the text simply because they can. Given that the conservative majority usually pushes for the primacy of the text, their refusal to follow the text and emphasis of their understanding of the intent of certain of the supporters of the 1982 amendment to Section 2 is telling.
The important thing to remember about this decision is that it, at least on its face, claims to merely be applying the language in Section 2. And statutes can be amended by Congress. Later this year, Congress will be considering the John Lewis Voting Rights Act. When this bill reaches the floor of the House and the Senate, it is important that it contain a provision fixing the Supreme Court’s blunder in Shelby County and restore pre-clearance requirements. Now, it also must fix this attempt to eviscerate Section 2.
Bipartisanship is a nice thing when you can get it. But the Constitution is not a suicide pact. Nor are the rules of the Senate. According to apocryphal stories, at the conclusion of the Constitutional Convention, Benjamin Franklin was asked what form of government the Convention had opted for. Supposedly, his response was “A republic if you can keep it.” Over the past twelve months, we have seen one attack after another on the concept of the U.S. keeping a republican form of government. It is now up to a handful of U.S. Senators if they are willing to do what it takes to keep a truly republican form of government or if they will stand back, in the name of bipartisanship and Senate tradition, and let the party of Trump in state after state undermine democracy. Senator Machin, Senator Sinema, the world is watching.
