Analysis: Supreme Court’s Efforts to Gut the Voting Rights Act Have Been Quite Bad For Voting Rights
Some advocates are skittish about even trying to appeal their losses, because they don’t want to risk making the status quo any worse.
Perhaps in a bid to atone for its other, worse content published of late, Bloomberg Law has an excellent deep-dive examining how Voting Rights Act lawsuits have fared since the Supreme Court gutted Section 2 of that law four years ago. The short answer is: very bad.
According to their analysis, in the wake of the justices’ 2021 decision in Brnovich v. Democratic National Committee, voting rights groups are now 60 percent less likely to rely on Section 2 when challenging discriminatory election laws. This shift could be attributable, at least in part, to post-Brnovich changes in legal strategy. But in some instances, advocates are almost certainly weighing the long odds they face and deciding not to pick a losing fight.
Bloomberg’s analysis helps quantify the impact of the Court’s efforts to chip away at the Voting Rights Act, which is the conservative legal movement’s most consequential accomplishment of the last six decades. The Congress that passed the VRA in 1965 included two principal enforcement mechanisms: Section 2, which allows people to challenge discriminatory voting-related laws in court, and Section 5, which requires jurisdictions with histories of race discrimination to “pre-clear” changes to their election laws with a federal court or the U.S. Department of Justice. But in Shelby County v. Holder in 2013, the Court’s five Republican justices decided that the formula in Section 4(b) of the VRA, which determines which jurisdictions are subject to Section 5, was unconstitutionally out-of-date. Section 5 technically remains on the books, but unless Congress updates the coverage formula—I would not hold my breath—Section 5 is, for all intents and purposes, dead letter.
Writing for the Shelby County majority, Chief Justice John Roberts argued that the case was not a death knell for voting rights, because Section 2, he said, is “permanent, applies nationwide, and is not at issue in this case.” As it turns out, “permanent” meant “for about eight more years,” because in Brnovich, which the Court decided in 2021, the justices came back to finish the job. In his opinion for the Court’s Republicans—six of them this time—Justice Samuel Alito created a set of new, more stringent “guideposts” for courts evaluating Section 2 cases, one of which declared right-wing conspiracy theories about the imperative to combat voter fraud to be, in Alito’s words, a “strong and entirely legitimate state interest.”
Alito’s “guideposts” have no basis in the Voting Rights Act’s text, and in dissent, Justice Elena Kagan called the opinion a “law-free zone” that “sprinkle[s] in a few random statutory words” for effect. But by rewriting the VRA to say what he thinks Congress ought to have said, Alito made it considerably easier for Republicans to suppress the voting power of people they don’t like: As long as they remember to use the magic words “election integrity,” judges have to extend the benefit of the doubt, no matter how many Black people get disenfranchised in the process.
Together, Brnovich and Shelby County took the legs out from beneath the Voting Rights Act: A weakened Section 2 makes it harder for voters to win in court, and a functionally-nonexistent Section 5 allows lawmakers to enact new discriminatory laws with no federal oversight. Voting rights advocates can still bring cases under state law, or under the Constitution. But the federal statute that ostensibly protects voting rights—the “crown jewel” of the Civil Rights Movement—is now more of a nice idea than a meaningful promise.
Incredible though this may seem, the Court might not be done yet: As Bloomberg notes, voting rights lawyers are skittish about even trying to appeal their losses to the Supreme Court, since the likeliest outcome is just an(other) decision that weakens Section 2 even further. This is perhaps the most serious consequence of a Court controlled by a six-justice Republican supermajority: The problem is not only that the cases it decides are bad. It’s that there is no path to improving the situation anytime soon.
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