I have written this piece for Slate. It begins:
It’s been almost a week since the Supreme Court issued its most significant ruling on voting rights in nearly a decade, and each time I read Justice Samuel Alito’s majority opinion in Brnovich v. Democratic National Committee, the angrier I become. I’m angry not only about what the court did but also about how much of the public does not realize what a hit American democracy has taken. In an opinion thick with irony, Justice Alito turned back the clock on voting rights to 1982. His decision for a six-justice conservative court majority reopens the door to a United States in which states can put up roadblocks to minority voting and engage in voter suppression with few legal consequences once a state has raised tenuous and unsupported concerns about the risk of voter fraud. It’s exactly the opposite of what Congress intended when it strengthened Section 2 of the Voting Rights Act in 1982, and it turns on its head the “non-retrogression” principle that Congress wrote in Section 5 of the Act and that the court essentially killed off eight years ago in Shelby County v. Holder….
Justice Alito’s opinion for the Court in Brnovich, ignoring the text of the statute, its comparative focus on lessened opportunity for minority voters, and the history that showed Congress intended to alter the status quo and give new protections to minority voters, essentially offered a new and impossible test for plaintiffs to meet to show a Section 2 vote denial claim. It’s worth focusing on two of the five “guideposts” that Justice Alito offered for courts evaluating Section 2 vote denial claims. (In truth, these are less guideposts and more roadblocks looking to stop plaintiffs at every turn when they assert their Section 2 claims.)
One of the guideposts specifically tells courts to compare the voting restrictions being challenged in a Section 2 case to the burdens of voting as they existed in 1982. This is the flip side of the old Section 5 non-retrogression principle, because it tells states that they can roll back voting restrictions to a time when registration was onerous, and early and absentee voting rare.
So imagine a state passes a law barring early voting on the Sunday before election day, because white Republican legislators know that reliably Democratic African-American voters often run “souls to the polls” events to take church-going voters straight to vote after services. While a challenge to such a rollback under Section 2 had a good chance of going forward before, how could it survive the 1982 benchmark now, when Sunday voting, and early voting as a whole, was rare?
Another guidepost is the strength of the state’s interests underlying an election rule. This turns Section 2’s “tenuousness” factor on its head. Under Section 2 as intended, if a state passed a restrictive voting law and claimed it was necessary to stop voter fraud, the state would have to prove that this was the real justification and not a pretext for discrimination. It would have to offer real evidence of fraud. But Justice Alito’s opinion repeatedly says voter fraud is a risk, even though Arizona could not point to any fraud to justify its challenged laws. States don’t have to prove fraud at all. It is a license to give tenuous excuses, excuses Republican legislatures are increasingly likely to give in the era of the “big lie” that the 2020 election was stolen from Trump.
The court’s decision in Brnovich to give a pass to states in not having to provide evidence of fraud but to require plaintiffs to show much more than the “usual burdens of voting” stands in sharp contrast to what the court did in another opinion issued the same day as Brnovich, Americans for Prosperity Foundation v. Bonta. That case concerned a California law that required charities to disclose their donors not to the public, but to the state for law enforcement purposes. In that case, the plaintiffs were conservative organizations, and the court held that plaintiffs need to put forward no real evidence that compelled disclosure “chilled” their First Amendment rights, but it required the state to come forward with tons of evidence that its disclosure requirement was “narrowly tailored” to serve “substantial” state interests.
There’s no getting around the reality that the new Supreme Court has its conservative favorites and its progressive enemies, and that the Court stands ready to recraft American democracy in its image….