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Is the Supreme Court nullifying the Voting Rights Act bad?


I would have thought that among people on the left of the American political spectrum this was a rhetorical question, but apparently not!

This is starting to piss me off. Maybe the Supreme Court is bound and determined to take apart our voting laws no matter what, but the truth is that yesterday’s ruling can be laid directly at the feet of liberals. This was just a stupid case to bring. You can’t make a serious argument that there’s anything really wrong with either a ban on ballot harvesting or with requiring voters to cast ballots in the right precinct.

We should start here with a point the post completely ignores: the Voting Rights Act, as amended in 1982, forbids state election laws that have a disparate effect on racial minorities, irrespective of facially neutral language. Drum apparently agrees with John Roberts that Congress should have narrowed the VRA rather than expanded its reach, but Congress concluded that racially discriminatory election laws were bad, and the Supreme Court’s job is to enforce the policy choice made by the legislative enactment, not the alternative proposed by hacks in Reagan’s Department of Justice. Alito’s opinion, however, simply acted as if Roberts had won rather than lost the argument, a grossly inappropriate abuse of judicial power.

Drum’s assertion that you can’t make a “serious argument” against the vote suppression measures is, as Kagan explains in her dissent (which you really should read), not true:

Just look at Arizona. Two of that State’s policies disproportionately affect minority citizens’ opportunity to vote. The first—the out-of-precinct policy—results in Hispanic and African American voters’ ballots being thrown out at a statistically higher rate than those of whites. And whatever the majority might say about the ordinariness of such a rule, Arizona applies it in extra-ordinary fashion: Arizona is the national outlier in dealing with out-of-precinct votes, with the next-worst offender nowhere in sight. The second rule—the ballot-collection ban—makes voting meaningfully more difficult for Native American citizens than for others. And nothing about how that ban is applied is “usual” either—this time because of how many of the  State’s Native American citizens need to travel long distances to use the mail. Both policies violate Section 2, on a straightforward application of its text. Considering the “totality of circumstances,” both “result in” members of some races having “less opportunity than other members of the electorate to participate in the political process and to elect a representative of their choice.” The majority reaches the opposite conclusion because it closes its eyes to the facts on the ground

Seems plenty serious to me! Again, Congress amended Section 2 precisely to forbid this kind of discriminatory action. Congress considered Drum’s “a little racially discriminatory vote suppression is OK” position and rejected it. My view is that the Supreme Court should enforce the law as written, and also that Arizona making it harder for some racial minorities to vote or to get their votes counted in exchange for absolutely no material benefits whatsoever (individual voter fraud is a completely immaterial non-problem) is bad.

It’s true that Arizona’s vote suppression measures are not among the most egregious currently being enacted by Republican legislators, but given that the sweep of Alito’s nullifying opinion will make it impossible to challenge virtually any vote suppression measure it’s beside the point (and also makes any tactical error here minimal — waiting for the “really” bad vote suppression measure to challenge wouldn’t help as long as the current Republican supermajority remains in place.)

What’s more, none of it matters. The actual effect of these rules on Black and Hispanic voter turnout turns out to be minuscule. It is a waste of time—maybe worse than just a waste of time—to yell and scream about these kinds of laws.

This is a completely misguided way of looking at things. First of all, it may be true that in the last three national election cycles the effects of vote suppression were basically cancelled out by increased mobilization, but we should be very careful about assuming that this will be the case in elections in which Donald Trump is not directly or effectively on the ballot. Secondly, making it harder to people to vote is bad in itself. It’s great that many Black people are willing to stand in line for hours to vote but they shouldn’t have to! Moreover, disenfranchising voters is ipso facto bad. Republican vote suppression measures, for example, make it harder for people with disabilities to vote. Even if the electoral effects of these measures is cancelled out by mobilizing other voters, some voters are still disenfranchised, and this is bad. And also a violation of federal law before Sam Alito decided to unilaterally re-write the controlling statute.

As Kagan points out, it’s also strange to argue that suppression measures with only marginal effects don’t matter in the aftermath of the 2020 election:

But across the five elections at issue in this litigation (2008–2016), Arizona threw away far more out-of-precinct votes—almost 40,000—than did any other State in the country.

Votes in such numbers can matter—enough for Section 2 to apply. The majority obliquely suggests not, comparing the smallish number of thrown-out votes (minority and non-minority alike) to the far larger number of votes cast and  counted. But elections are often fought and won at the margins—certainly in Arizona. Consider the number of votes separating the two presidential candidates in the most recent election: 10,457. That is fewer votes than Arizona discarded under the out-of-precinct policy in two of the prior three presidential elections. This Court previously rejected the idea—the “erroneous assumption”—“that a small group of voters can never influence the outcome of an election.”

This is similarly myopic:

What really is bad are provisions of these laws that allow Republican legislatures to replace election officials they deem insufficiently loyal to the Republican cause. If you talk to moderate voters, they’ll be shocked if you tell them about this. They’ll agree that these provisions are outrageous.

It is, first of all, strange to paint the disempowering of election officials who were unwillng to help steal elections and vote suppression measures as somehow being independent rather than complementary measures. But secondly, given the current Supreme Court it’s not clear what remedies Democrats have. Again, the crucial takeaway from Brnovich is that the six Republican nominees ignored the clear language of a statute passed by Congress because they disagree with the policy choices Congress made. How do you think they’ll act if slate legislators try to nullify the will of their state’s electorate? That’s why liberals are very justly outraged by the Court’s actions. It’s all part of the same problem.

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