The following is a guest post from Doug Spencer:
Last Thursday’s decision in Brnovich v. DNC exposed the skill of the Supreme Court’s conservative Justices to twist and bend the law in ways that were never intended. The Roberts Court’s general aversion to shoring up America’s democratic ideals has already been documented and dissected. So the Brnovich decision did not catch many by surprise. But the brazenness with which the Court minimized the right to vote is disappointing. It’s hard to reconcile the Court’s indifference to inconveniences on voting rights (e.g., fn 11, slip op. at 16) with its uncompromising protection of gun rights or its “most-favored-nation” approach to religious freedom. Why are voting rights so different? And so less worthy of protection?
Consider the majority’s view that “[a]s we have noted, differences in employment, wealth, and education make it virtually impossible for a State to devise rules that do not have some disparate impact” (slip op. at 24–25). Here the Court acknowledges that the residue of racial discrimination has created systemic social disparities and that these social disparities are nearly certain to translate into political disparities. Such an awareness should lead to stronger voting rights protections in the courts since political remedies will unfairly be out of reach. However, like a skilled contortionist, the majority bends in the opposite direction by holding that systemic racial disparities in politics are a signal to courts to defer to the political branches. (We’ve seen a similar logic before).
Consider also Alito’s concern that “[f]raud can affect the outcome of a close election, and fraudulent votes dilute the right of citizens to cast ballots that carry appropriate weight” (slip op. at 19). Here the majority completely ignores the fact that restrictive voting laws can also affect the outcome of a close election and completely deny eligible citizens of their right to vote as Mike Gilbert has nicely illustrated. Nevertheless, the majority opinion’s concern about fraud implicitly acknowledges that restrictive voter laws are motivated by a desire to shape the electorate. By endorsing this motivation, the majority twists the law yet again. Like the oft-misattributed lament that gerrymandering allows politicians to choose their voters instead of the other way around, the Brnovich decision has turned a blind eye to the very same dynamic in the administration of elections.
As we approach the 25th anniversary of Sam Issacharoff and Rick Pildes’s Politics as Markets: Partisan Lockups of the Democratic Process, perhaps it’s time to revisit whether an individual rights framework is appropriate for voting. The current Supreme Court certainly does not view minority voting rights as preservative of all rights, let alone as fundamental or as important as other individual rights so perhaps it’s time to follow their cue and rethink how we enforce voting rights altogether. Guy Charles and Luis Fuentes-Rohwer have been begging us to do so for quite some time. I am a bit embarrassed to admit that while I shared their alarm, I did not share their urgency. I was naïve. What is clear—what Brnovich laid bare—is that the VRA as currently constituted is not up to the task. It’s time to reconceptualize voting rights enforcement from the ground up.