There’s no way to sugarcoat it: On Thursday, the Supreme Court’s six conservative justices dismantled what remains of the Voting Rights Act, all but ensuring that every voter suppression law passed in the wake of the 2020 election will survive judicial scrutiny.
Thursday’s 6–3 decision in Brnovich v. DNC feigns moderation. Justice Sam Alito’s opinion for the court purports to leave the VRA’s most crucial remaining provision intact. Don’t believe it. Alito transformed a sweeping, historic law—one intended to bar voting restrictions with a racially discriminatory impact—into an empty promise. In theory, the VRA still stands. In reality, it has been flattened into meaningless symbolism, just when Black and brown Americans need it most.
Brnovich revolves around Section 2 of the Voting Rights Act, which contains the law’s “results test.” Congress added this test in recognition that racist voting restrictions are often neutral on their face. That was true after Reconstruction, when grandfather clauses and literacy tests proliferated, and it is true today. So, Congress did not only prohibit voting laws that could be proved to have been passed with discriminatory intent. It also forbade any voting law that “results in a denial or abridgement” of the right to vote on account of race. An illegal “denial or abridgement” occurs when an election is “not equally open to participation” by all races and racial minorities have “less opportunity” to participate.
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This test is extraordinarily broad. And in Brnovich, a federal appeals court found that two Republican-sponsored Arizona laws could not pass it. One law discarded ballots accidentally cast in the wrong precinct; another severely limited third parties’ ability to collect mail ballots and hand them over to election officials. Both laws, the appeals court found, disproportionately affected racial minorities, so both violated the VRA’s results test. The court also held that the ballot collection ban was enacted with discriminatory intent, which is always unlawful.
On Thursday, the Supreme Court reversed that decision—and did so in a way that mangles the results test beyond all recognition. Remember: The VRA demands equal “opportunity” to vote across races. So, as Justice Elena Kagan explained in her trenchant dissent, a voting restriction is unlawful if it “makes it harder for members of one racial group, than for others, to cast ballots.”
Alito did not adopt that straightforward reading. Instead, his opinion is, in Kagan’s words, “a law-free zone” that leaves the VRA’s language “almost wholly behind.” Rather than enforce the VRA’s text, Alito effectively crafted a new, vastly weaker statute out of thin air. For instance, he wrote that most voting rules in place when Congress added the results test in 1982 will probably pass legal muster. He dismissed “predictable disparities” between white and nonwhite voting opportunities that ostensibly result from differences in “employment, wealth, and education.” He insisted that courts “consider the opportunities provided by a state’s entire system of voting when assessing the burden imposed by a challenged provision,” meaning a restriction that disproportionately burdens racial minorities may be lawful if they still have other means of voting. And he wrote that states can justify a broad range of voting limitations by citing their “strong and entirely legitimate” interest in “the prevention of fraud”—even if there is no evidence that fraud has ever occurred in the state.
Taken together, Alito’s rules establish a brand-new test under the VRA, one that bears little resemblance to the law that Congress actually passed. His apparent goal was to ensure that a voter suppression law’s grossly disparate impact on racial minorities will no longer serve as grounds for its invalidation. Mission accomplished. Many if not all of the voting restrictions passed after the 2020 election would survive Alito’s test: As he noted, most states strictly limited both early and absentee voting before the results test was enacted in 1982, and Republican lawmakers have targeted these exact methods of voting in their quest to prevent more Democratic victories today. GOP legislatures around the country have, in the past year, curtailed early voting—especially on days favored by Black residents—and cut back on absentee voting. They have passed draconian laws that, while ostensibly race-neutral, are obviously designed to suppress racial minorities’ votes.
In the past, federal courts have struck down such laws due to their discriminatory impact on nonwhite voters. Those rulings will now come to a halt. Under Alito’s test, these laws will presumably survive a court challenge. After all, residents theoretically have other ways to cast a ballot, and most states still provide more options today than they did in 1982. Plus, states have “strong” interest in preventing fraud by making it harder to vote, even if they can’t summon an iota of evidence that voter fraud exists in the first place. Thus, even if a certain law may have a devastating impact on racial minorities’ preferred method of voting, courts will now uphold it.
The only realistic way to challenge a voter suppression law after Brnovich is to prove that it has discriminatory intent—in other words, that it was passed with racist motivations. But here, again, Alito tightened the screws. The appeals court found that Arizona legislators acted with racist intent because, among other things, they fixated on a racist video when debating a ban on ballot collection. Lawmakers, the appeals court wrote, spewed “false allegations and racial innuendo” against Latino voters, who use ballot collection more than white voters. But Alito dismissed this evidence. He wrote that, if anything, GOP legislators wanted to suppress Democratic votes, and since Hispanics are disproportionately Democratic, their law just so happened to fall especially hard on Hispanic voters. Alito even described the appeals court’s conclusion as “insulting” to the legislators accused of racism, a classic move from a justice who is offended by the mere supposition that racism still exists. This portion of his opinion will likely doom the Department of Justice’s lawsuit against Georgia’s sweeping new voter suppression law, which is based on a theory of discriminatory intent.
As election law expert Rick Hasen noted on Thursday, the Supreme Court has now “taken away all the major available tools for going after voting restrictions.” The preclearance requirement, once the heart of the VRA, was destroyed in 2013’s Shelby County v. Holder. And now Section 2’s results test is something close to a dead letter. “Of all laws,” Kagan wrote in her Brnovich dissent, the VRA “deserves the sweep and power Congress gave it. That law, of all laws, should not be diminished by this court.” The VRA, Kagan observed, “still has much to do” at a time “when too many states and localities are restricting access to voting in ways that will predictably deprive members of minority groups of equal access to the ballot box.”
But the court’s conservative justices despise the VRA, and they no longer feel any obligation to conceal their hostility. After Brnovich, there’s no point in denying it: Congress’ dream of a nation where all races have equal access to the ballot is dead.
