The Supreme Court struck a double blow with its decision last week to narrow the meaning of the 1965 Voting Rights Act. The first undermines the ability of courts to police the racial fairness of voting laws. The second undermines the legitimacy of the court itself.
The 6-3 decision split along ideological and partisan lines upheld Arizona laws that disqualified ballots of voters who show up at the wrong precinct and that prohibited third parties from collecting and delivering absentee ballots — the practice conservatives contentiously call ballot harvesting.
The court said directly that the landmark law, passed to combat segregationist practices during the civil rights era, should not be read as prohibiting state laws that have a disparate impact on voters based on their race without broader evidence of reduced voting equality for minorities. This outcome confirms the fears of progressives, who have been fretting for months that by challenging the relatively mild Arizona laws, voting-rights advocates were opening the door for the conservative majority to issue a decision severely limiting the effect of Section 2, which allows voters to go to court to fight state or local measures that restrict their voting rights on the basis of race.
The decision can be seen as a sequel to the 2013 decision in Shelby County v. Holder, in which the conservative majority struck down other provisions of the Voting Rights Act that had subjected historically discriminatory states and localities to Justice Department scrutiny. Taken together, the two cases reflect a conservative consensus that the time for aggressively policing discrimination in voting laws is now over.
The basic vision of the majority decision in the Arizona case, Brnovich v. Democratic National Committee, was laid out by Justice Samuel Alito. It is that the landmark voting law was meant to take aim at the racially discriminatory voting practices of the South under segregation, and should not be applied to contemporary voting regulations that are formally race-neutral — even if those can be shown to affect voters of different races differently.
Alito insisted the decision did not amount to a new test to govern all Section 2 claims involving rules “that specify the time, manner, and place for casting ballots,” but only set out general guidelines. That’s a tenuous silver lining for progressives. It will allow liberals in future cases to claim the factual circumstances are different from those that obtained in this Arizona case.
The guidelines for applying the statute that the court then specified, however, were extraordinarily restrictive. Alito said that under the Voting Rights Act, the “touchstone” requirement is that voting rules be “equally open” to all. The formulation was intended to preclude the idea that Section 2 bars voting rules that are equally open on the surface while affecting different voters differently based on race.
Alito went on to list five factors to consider when a voting rule is challenged under Section 2:
• The size of the burden imposed on voters;
• The degree to which the rule deviates from the rule in effect in 1982, when Section 2 was last amended;
• The scale of any disparate racial impact;
• The opportunities to vote provided by the state’s overall system;
• The strength of the state interests served by the rule — such as preventing fraud.
In the key line of the opinion, Alito said that the model for identifying racial discrimination based on disparate impact that is used to interpret many other federal civil rights laws was “not useful here.” He wrote that defining discrimination based on disparate impact “would have the effect of invalidating a great many neutral regulations with long pedigrees that are reasonable means of pursuing legitimate interests.”
Given that the opinion said disparate impact was not the way to measure violation of the statute, it’s noteworthy that Alito’s opinion did take the trouble to point out that the Arizona precinct voting rule had only mild disparate impact, affecting most minority voters at around a 1% rate and white voters at roughly 0.5%. Technically, if disparate impact is not relevant, the court should not have addressed the issue at all. This, too, will allow progressives in the future to claim that the court’s decision leaves room for disparate-impact claims with numbers different from those found in this case. But of course when that happens, states will rejoin that the court also dismissed disparate impact as inapposite.
In a stinging dissent, Justice Elena Kagan accused the majority of rewriting the Voting Rights Act rather than respecting the intent of its drafters, and of ignoring continuing voter discrimination. She attacked Alito’s interpretation of the text of the law, too, insisting that its plain meaning, which mentions equality of “opportunity” in voting, extends to racially disparate impact.
Kagan also made the important point that small disparities in the effects of laws can matter tremendously in closely contested races — a point that Joe Biden’s razor-thin victory margin in the 2020 Georgia presidential vote underscores. She also made the grander point that the Voting Rights Act should not be treated as just any old law, given its centrality to democracy and the existence of historical and contemporary forms of voting discrimination.
It’s unfortunate that the 6-3 split follows not only ideological lines but also partisan ones, with the six conservatives in the majority all appointed by Republicans and the three liberal dissenters by Democrats. The court’s conservatives clearly believe that racial disparities in voting results aren’t a problem. That’s a convenient view for Republicans to hold in this day and age. The majority’s opinion harms the court’s legitimacy — at a time when that legitimacy is sorely needed.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”