The Roberts Court is destroying voting rights — winning back state legislatures is the only answer

Another coffin nail for the Voting Rights Act — and the only remedy is political victory at the state level

Published July 5, 2021 7:00AM (EDT)

John Roberts | Supreme Court (Photo illustration by Salon/Getty Images)
John Roberts | Supreme Court (Photo illustration by Salon/Getty Images)

This week, a conservative majority on the U.S. Supreme Court that has dedicated itself to making it more difficult for Americans to vote struck again and drove a nail further into the heart of the already-gutted Voting Rights Act. As Republican state legislatures nationwide continue to pass restrictive laws that place additional burdens especially on voters of color, this Court, over a decade of shameful, pinched jurisprudence, has slowly eviscerated the crucial tools enacted to curb the worst instincts of lawmakers.

In a 6-3 decision that broke along sadly predictable partisan lines, the Court upheld on Thursday a pair of voter suppression laws from Arizona that banned ballot collection and severely regulated out-of-precinct voting, despite clear evidence that these laws disproportionately burdened minority voters. 

The burdens and racial intent in these cases were clear to lower courts and less determined partisan judges. Arizona officials relocate the voting precincts of Black and Latino residents at a wildly higher rate than white precincts, resulting in considerable and predictable confusion. And Native American and rural Arizonans — where household mail service is rare and often unreliable — rely on volunteers and community members to return their ballots. There has been no — zero  — proof of fraud in this important service.

None of that mattered to this Court, and indeed, the decision is not surprising to those following the Roberts Court's steady trajectory rightward in voting cases and other civil rights. 

What this decision reinforces, however, is that Section 2 of the Voting Rights Act will no longer serve as a necessary protection against legislation designed to suppress the vote of racial minorities. Even when the facts are as clear as they are here. And even in states like Arizona, where lawmakers have a century of experience in designing voting restrictions carefully crafted to preserve white political power.

That means this decision must serve as a last chance, five-fire alarm bell to progressives — indeed, all Americans who care about protecting the foundational right to vote and perhaps the most valuable piece of civil rights legislation in our history—about the urgent need to invest in state legislatures, which are ever increasing in power. State legislatures are the final boss in the Republican quest to vanquish democracy. We cannot cede this fight to them.

Brnovich: The case and decision

The path to Brnovich began in 2013, when the Supreme Court struck down the "pre-clearance" requirement under Section 5 of the Voting Rights Act in Shelby County v. Holder. Suddenly, states with a history of suppressing minority voters — including Arizona — were free to change voting rules without obtaining DOJ's prior approval. They moved fast and took full advantage. Arizona quickly passed the laws at issue: first, making it a felony to return someone else's signed ballot (known as ballot collection), and second, disenfranchising people who accidentally cast a ballot in the wrong precinct. 

Importantly, the plaintiffs in the case presented clear and extensive evidence demonstrating that Latino and Native American voters are disproportionately burdened by the elimination of ballot collection, and that minority voters are twice as likely to vote in the wrong precinct as white Arizonans. These restrictions, the plaintiffs argued, violated Section 2 of the Voting Rights Act, which protects minority groups from voting laws and practices that are discriminatory.

Nonetheless, Justice Samuel Alito stated for the majority that "Arizona's out-of-precinct policy and HB 2023 do not violate §2 of the VRA, and HB 2023 was not enacted with a racially discriminatory purpose." In doing so, the Court has upheld discriminatory voting laws and weakened Section 2 of the Voting Rights Act -- which will make future challenges even harder.

Latest in a long line of coffin nails for Voting Rights Act

A central goal of conservative jurisprudence is the carving back of federal protections, and the empowerment of states over vast swaths of social and civil life. This decision is part of a long trajectory of the Court limiting federal protections and devolving power back to states. Voting rights are a clear example of this trajectory, and the Brnovich decision now lays against its forebears, particularly the Shelby County v. Holder decision. And indeed, Chief Justice Roberts has been patiently preparing to dismantle Section 2 of the Voting Rights Act for 40 years. His careful long game may end in checkmate for majority rule as we know it.

Arizona: Ground zero

It is fitting that this latest decision upholds Arizona laws. Despite eking out a Biden victory, Arizona remains a Republican trifecta controlled by arch-conservatives in the legislature and governor's mansion. In a state where just a few votes can be dispositive to an election (just look at Biden's 10,457-vote margin), this red trifecta has gone into voter suppression and conspiracy overdrive since the 2020 election. A drawn-out "fraudit" of the election has worked to undermine trust in democracy and has served as a blueprint to other GOP-controlled states. And a suite of laws have carved back voting rights and access, including a new bill to strip the (currently Democratic) secretary of state's power around key aspects of election administration

State legislatures matter — now more than ever

As Rick Hasen has explained, Alito's opinion in the 2018 Abbott v. Perez case makes it essentially impossible for a court to find racially discriminatory intent in voting laws when race and party categories overlap. But, obviously, given long-existing patterns of racial voting polarization, they will often overlap. This means that state legislatures can use this naturally-occurring circumstance to shield discriminatory intent to their heart's content, without concern for violating Section 2. They can discriminate based on race while pretending they're simply using partisanship. This has been the recent GOP strategy on gerrymandering. It will now be the go-to move in red state legislatures nationwide on voter suppression. This Court won't stop it. They've rolled out green lights and eliminated any speed limit.

The bottom line is that the Brnovich decision must serve as a loud warning: The Roberts Court cannot and will not protect voting rights. And the truly breathtaking deadlock in the Democratic federal trifecta over a new federal voting rights law makes clear that we absolutely cannot wait for Congress to act either. The answer is clear: On voting rights and so much more, the buck does and will continue to stop with state legislatures. We must elect legislators who will fight to protect voting rights — down-ballot, where it matters most and is too often overlooked — or risk becoming a nation filled with democracy deserts, where your right to vote depends on where you live and your access to the polls depends on the color of your skin. 

This is John Roberts' America. The stakes could not be higher. No one is coming to bail us out.

By David Daley

David Daley, former editor-in-chief of Salon, is the author of the national bestseller “Ratf**ked: Why Your Vote Doesn’t Count” and “Unrigged: How Americans Are Battling Back to Save Democracy.”

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By Gaby Goldstein

Gaby Goldstein is an attorney and political strategist who focuses on the growing importance of state legislatures. She is co-founder of Sister District, whose mission is to build progressive power in state legislatures and support progressive state legislators once elected, and co-moderator of the State Power Series, a virtual event series co-sponsored by Vote Save America/Crooked Media and Sister District. Follow her: @gaby__goldstein

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