The Roberts Court’s Nullification of the Voting Rights Act

I’ve seen some people try to downplay Brnovich v. Democratic National Committee because Arizona isn’t one of the very worst vote suppression offenders, but this is a serious mistake. Alito’s opinion has, as everyone should have expected, rendered Section 2 of the Voting Rights Act essentially unenforceable:

On the last day of its current term, the Supreme Court under the leadership of Chief Justice John Roberts continued its war on voting rights with its decision in Brnovich v. Democratic National Committee. And though Justice Samuel Alito’s opinion attempted to strike a modest tone while giving states more leeway to make it harder for people of color to vote, it is clear that this court will smile upon even the worst vote suppression efforts being undertaken by Republican legislatures in the wake of former President Donald Trump’s false claims that the 2020 election was stolen.

And while the Arizona law upheld in this particular case isn’t the most egregious set of vote suppression standards that states have enacted in the last decade, Alito’s opinion makes it clear that any of the challenges to more recent and more stringent voter suppression measures enacted in states — like the one against Georgia being mounted by the Department of Justice — are unlikely to succeed.

Congress, however, enacted legislation decades ago to stop exactly the kind of discrimination occurring in Arizona and which will likely occur in Georgia as a result of its new law: The Voting Rights Act. And two different provisions — Section 4 and Section 2 — should have forced the court to stop these states.

But in its infamous 2013 decision Shelby County v. Holder, the Supreme Court struck down Section 4 of the Voting Rights Act, which had required states, counties and municipalities with a history of disenfranchising voters on the basis of race to submit changes to their election laws to the Department of Justice. Congress enacted this particular provision because, in the post-Reconstruction Era, states had proven remarkably ingenious at finding ways of disenfranchising racial minorities that were formally race-neutral.

But — and without any basis in the text of the Constitution — the court argued that because so much progress had been made on voting rights in the years since the Voting Rights Act had passed, the strong measures taken in Section 4 were obsolete and beyond Congress’ authority.

To pause briefly, as Kagan observes in her dissent, the “equal sovereignty of the states” bullshit Roberts made up for the occasion has yet to make another apperance, as if it was a bunch of ad hoc bullshit thrown up to achieve one particular result rather than an actual legal doctrine.

But, as Justice Elena Kagan pointed out in her dissent, both of the challenged provisions violate Section 2. Arizona’s has unusually harsh restriction on people who vote in the wrong precinct, tossing their ballots immediately — a third of the ballots thrown out for this reason nationally were in Arizona — “results in Hispanic and African American voters’ ballots being thrown out at a statistically higher rate than those of whites.” And the state’s ban on absentee ballot collection “makes voting meaningfully more difficult for Native American citizens than for others.”

Congress enacted the Voting Rights Act precisely to stop this kind of discrimination: while one can say that other states have enacted worse voter suppression measures, Section 2 does not only ban the worst practices. Using broad language, it also bans all racially discriminatory restrictions on the right to vote and it specially bans practices with a discriminatory effect — whether legislatures enacted them with a discriminatory purpose or not.

Kagan’s opinion is very good on this point, but Alito’s opinion really does exemplify that tired phrase “legislating from the bench.” The Republican justices on the Trump Court doesn’t like the choices Congress made, so it’s decided to just enforce a different statute instead:

One thing Kagan's dissent communicates very effectively is that Alito and the 5 other Republican justices are engaged in an act of nullification here. He doesn't like the choice Congress made to ban voting restrictions with a disparate impact, so he refuses to enforce the law: pic.twitter.com/qeKQW6HsqI— Scott Lemieux (@LemieuxLGM) July 1, 2021

This is reminiscent, to me, of when Justice Brennan accused the majority in mcCleskey (which refused to invalidate GA's capital punishment scheme in light of evidence that the race of the defendant's victim predicted the defendant's sentence) bc of a fear of "too much justice."— Leah Litman (@LeahLitman) July 1, 2021

“We cannot enforce the statute as written because it would stop too much vote suppression and we like vote suppression” is almost literally the holding of Alito’s opinion.

One of the grim lessons here is that it’s a mistake to conflate judicial power with judicial review. Statutory interpretation cases like Perez v. Abbott and Brnovich have done as much or more damage to the VRA as Shelby County. It’s a really serious problem. Congress amended the VRA in 1982 PRECISELY TO FORECLOSE ALITO’S “INTERPRETATION” OF THE STATUTE, as will as to forbid exactly the kind of discriminatory measures Arizona passed. Ultimately the only cure for systematic judicial bad faith is to have the median vote of the Supreme Court not be held by a neoconfederate; there’s no other way. It’s just awesome that the lawless nullification of the most important civil rights statute since Reconstruction isn’t motivating Breyer to make this possibility even fractionally more likely.