The Supreme Court isn’t even pretending that it’s bound by legal texts in its voting rights cases.
The Supreme Court, Justice Elena Kagan lamented in a dissenting opinion earlier this month, “has treated no statute worse” than the Voting Rights Act.
She’s right.
The Voting Rights Act is arguably the most successful civil rights law in American history. Originally signed in 1965, it was the United States’ first serious attempt since Reconstruction to build a multiracial democracy — and it worked. Just two years after President Lyndon Johnson signed the Voting Rights Act into law, Black voter registration rates in the Jim Crow stronghold of Mississippi skyrocketed from 6.7 percent to nearly 60 percent.
And yet, in a trio of cases — Shelby County v. Holder (2013), Abbott v. Perez (2018), and Brnovich v. DNC (2021) — the Court drained nearly all of the life out of this landmark statute. After Brnovich, the decision that inspired Kagan’s statement that the Court has treated the Voting Rights Act worse than any other federal law, it’s unclear whether the Supreme Court would rule in favor of voting rights plaintiffs even if a state legislature tried to outright rig an election.
These cases are the culmination of more than half a century of efforts by conservatives who, after failing to convince elected lawmakers to weaken voting rights, turned to an unelected judiciary to enact a policy that would never have made it through Congress. All of this is bad news for minority voters in America, who are most likely to be disadvantaged by many of the new restrictions currently being pushed in statehouses across America, and for the country’s relatively young commitment to multiracial democracy. And there are at least three reasons to fear that decisions like Shelby County and Brnovich foreshadow even more aggressive attacks on the right to vote.
The first is that Republican partisans can use race as a proxy to identify communities with large numbers of Democratic voters. In 2020, according to the Pew Research Center, 92 percent of non-Hispanic Black voters supported Democrat Joe Biden over Republican Donald Trump — and that’s after Trump slightly improved his performance among African Americans compared to 2016.
That means that state lawmakers who wish to prevent Democrats from voting can do so through policies that make it harder for Black voters (and, to a lesser extent, most other nonwhite voters) to cast a ballot. And Republican lawmakers haven’t been shy about doing so. As a federal appeals court wrote in 2016 about a North Carolina law that included many provisions making it harder to vote, “the new provisions target African Americans with almost surgical precision.”
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An even starker example: Georgia recently enacted a law that effectively enables the state Republican Party to disqualify voters and shut down polling precincts. If the state GOP wields this law to close down most of the polling places in the highly Democratic, majority-Black city of Atlanta, it’s unclear that a Voting Rights Act that’s been gravely wounded by three Supreme Court decisions remains vibrant enough to block them.
The second reason to be concerned about decisions like Brnovich is that the Supreme Court’s attacks on the Voting Rights Act are not isolated; they are part of a greater web of decisions making it much harder for voting rights plaintiffs to prevail in court.
These cases include decisions like Purcell v. Gonzales (2006), which announced that judges should be very reluctant to block unlawful state voting rules close to an election; Crawford v. Marion County Election Board (2008), which permitted states to enact voting restrictions that target largely imaginary problems; and Rucho v. Common Cause (2019), which forbade federal courts from hearing partisan gerrymandering lawsuits because the Court’s GOP-appointed majority deemed such cases too “difficult to adjudicate.”
Finally, decisions like Shelby County and Brnovich are troubling because the Court’s reasoning in those opinions appears completely divorced from the actual text of the Constitution and from the text of federal laws such as the Voting Rights Act.
Shelby County eliminated the Voting Rights Act’s requirement that states with a history of racist election practices “preclear” any new voting rules with officials in Washington, DC. It was rooted in what Chief Justice John Roberts described as “the principle that all States enjoy equal sovereignty,” a principle that is never mentioned once in the text of the Constitution.
In Brnovich, the Court upheld two Arizona laws that disenfranchise voters who vote in the wrong precinct and limit who can deliver an absentee ballot to a polling place. Alito purports to take “a fresh look at the statutory text” in this case. But he imposes new limits on the Voting Rights Act — such as a strong presumption that voting restrictions that were in place in 1982 are lawful, or a similar presumption favoring state laws purporting to prevent voter fraud — which have no basis whatsoever in the law’s text.
As Kagan writes in dissent, Brnovich “mostly inhabits a law-free zone.”
That doesn’t necessarily mean that this Supreme Court will allow any restriction on voting to stand — under the most optimistic reading of cases like Brnovich, the Court might still intervene if Georgia tries to close down most of the polling places in Atlanta — but it does mean that voting rights lawyers and their clients can no longer expect to win their cases simply because Congress passed a law protecting their right to vote.
The rules in American elections are now what Roberts and his five even more conservative colleagues say they are — not what the Constitution or any act of Congress has to say about voting rights.
In retrospect, it was probably inevitable that the conservative backlash against voting rights would flourish in the one unelected branch of the federal government.
When Congress first enacted the Voting Rights Act in 1965, its “preclearance” provision — the provision that was deactivated in Shelby County — was set to expire in five years. Congress extended preclearance four times, in 1970, 1975, 1982, and 2006, and each time the bill reauthorizing the fully operational Voting Rights Act was signed by a Republican president.
At least some of these GOP presidents made aborted efforts to weaken the law — President Richard Nixon, for example, proposed allowing preclearance to expire in 1970, but he backed down in the face of intense opposition from civil rights organizations.
Similarly, a significant faction within the Reagan administration — a faction that included future Chief Justice Roberts — pressed President Ronald Reagan to veto a 1982 bill expanding the Voting Rights Act. In 1980, Reagan had denounced the Voting Rights Act as “humiliating to the South,” so this conservative faction appeared to have a sympathizer in the Oval Office.
But Republicans in Congress and in the White House ultimately concluded that standing athwart the Voting Rights Act was too politically toxic. As then-Rep. Trent Lott (R-MS) warned Reagan in 1981, after an expansive voting rights renewal had already passed the House, “anyone who seeks to change” that bill “will risk being branded as racist.”
By the time the Voting Rights Act was up for reauthorization again in 2006, its conservative opponents had largely given up on convincing elected officials to let much of the law die. The bill passed both houses by overwhelming margins and was signed by President George W. Bush.
“Republicans don’t want to be branded as hostile to minorities, especially just months from an election,” anti-civil rights activist Edward Blum complained in a bitter 2006 article published by National Review. Blum would go on to be the driving force behind Shelby County and several other lawsuits seeking to diminish the rights of people of color.
Yet, as it turned out, Blum understood something that the conservative opponents of voting rights who lobbied elected officials in vain did not.
The premise of an independent judiciary is that judges must be insulated from political pressure so that they will apply the law without favor. This is why federal judges serve for life, and why they are guaranteed to keep their salary so long as they remain in office. But these very same protections also allow judges who support an unpopular policy agenda to implement it without fear of losing their job.
By the time Shelby County reached the Supreme Court, the Court was dominated by conservatives who, in Justice Antonin Scalia’s words, saw the Voting Rights Act as a “perpetuation of racial entitlement.”
“Whenever a society adopts racial entitlements,” Scalia complained during the Shelby County oral arguments, “it is very difficult to get out of them through the normal political processes.” He then channeled the resentments of men like Blum.
“I don’t think there is anything to be gained by any Senator to vote against continuation of this act,” Scalia continued. “And I am fairly confident it will be reenacted in perpetuity unless — unless a court can say it does not comport with the Constitution.”
And so the Court said just that.
One of the many frustrating things about the Shelby County opinion is that it doesn’t even attempt to root its holding in the text of the Constitution.
The question of what constraints the Constitution’s text places on judges, especially when that text is ambiguous, is one of the most hotly contested questions in American law. But even when the Court hands down constitutional decisions that are broadly criticized, it typically makes at least some effort to ground its holding in a specific provision of the Constitution.
The Court’s anti-worker decision in Lochner v. New York (1905) and its pro-abortion rights decision in Roe v. Wade (1973), for example, were both rooted in the 14th Amendment’s promise that no one shall be denied “liberty” without “due process of law.”
Indeed, even the Court’s decision in Griswold v. Connecticut (1965), one of the most widely mocked majority opinions of the past century, at least tried to ground its holding in specific constitutional provisions. Griswold established married couples’ right to use contraceptives, and announced a “right to privacy” that formed the basis for subsequent liberal victories on abortion and sexuality. But the Court swiftly abandoned Griswold’s legal reasoning, which was rooted in the idea that the First, Third, Fourth, Fifth, and Ninth Amendments “have penumbras, formed by emanations from those guarantees that help give them life and substance.”
And yet, compared to Roberts’s majority opinion in Shelby County, Griswold seems like a paean to textualism and judicial restraint. Shelby County never identifies which provision of the Constitution embodies the “‘fundamental principle of equal sovereignty’ among the States” that the Court’s decision rests upon.
Although Shelby County does make a vague statement that the 15th Amendment “is not designed to punish for the past; its purpose is to ensure a better future,” this principle appears nowhere in the text of that amendment. And, in any event, the concept of “equal sovereignty” does not flow from Roberts’s future-driven interpretation of that amendment. It can’t even be found in the 15th Amendment’s penumbras and emanations.
We don’t have to imagine what Shelby County might have said if the Court had attempted to ground its decision in constitutional text — and in nearly 200 years of precedent governing how courts should read that text. Chief Justice Earl Warren wrote that opinion for the Court in South Carolina v. Katzenbach (1966), the Court’s original decision upholding the Voting Rights Act, which relies heavily on both the text of the 15th Amendment and a centuries-old line of cases holding that Congress’s power to legislate should be construed broadly.
The 15th Amendment has two provisions. The first prohibits the government from denying or abridging the right to vote “on account of race, color, or previous condition of servitude,” while the second clause declares that “Congress shall have power to enforce this article by appropriate legislation.” Thus, as Warren explained, Congress has broad authority to enact laws preventing race discrimination in voting.
Warren quoted a line of cases, stretching back to the early days of the republic, which established that Congress’s power to regulate is quite broad indeed. When the Constitution gives Congress the power to legislate on a particular subject matter, the Court established in McCulloch v. Maryland (1819), it may use “all means which are appropriate” and that are “plainly adapted” to a legitimate end, so long as Congress does not violate some other provision of the Constitution in the process.
Taken together, decisions like McCulloch and the 15th Amendment’s text yield a clear result: Congress, not the Court, gets to decide how it wants to fight race discrimination in voting. Congress, not a handful of Republican-appointed judges, gets to decide whether preclearance should exist, and which states should be subject to it.
Indeed, Congress would have the power to impose a preclearance regime on most state election rules even if the 15th Amendment didn’t exist. Although the Constitution’s “Elections Clause” permits states to determine the “times, places and manner of holding elections for Senators and Representatives,” it also permits Congress to “make or alter such regulations, except as to the places of choosing Senators.” Thus, the federal government doesn’t just have nearly complete authority to regulate congressional elections, it explicitly has the power to displace state laws.
And yet, as Franita Tolson, a law professor at the University of Southern California and a leading expert on the federal government’s power to regulate elections, explained in recent testimony before Congress, Shelby County “ignored that the Elections Clause stands as an additional source of authority” which “can justify federal anti-discrimination and voting rights legislation.”
The impact of Shelby County was fairly swift. In 2013, for example, Texas enacted racially gerrymandered legislative maps, even though a federal court had rejected many key elements of these maps under the Voting Rights Act’s preclearance provisions. Yet, with preclearance dead, the Supreme Court upheld nearly all of Texas’s gerrymandered maps in Abbott v. Perez (2018).
Similarly, if preclearance were still in effect, it is unlikely that many of the controversial provisions of Georgia’s recently enacted voter suppression law would survive. And certainly no federal official acting in good faith would permit Georgia to simply start closing down polling places in Black neighborhoods.
Alito’s opinion in Brnovich pays no more heed to the text of the Voting Rights Act than Roberts’s opinion in Shelby County paid to the Constitution.
That case involved two interlocking provisions of the Voting Rights Act. One prohibits any law that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” The other provides that the Voting Rights Act is violated if “based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by” voters of color, or if such voters “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
That’s a lot of thick legal language, but one searches it in vain for anything suggesting, as Alito wrote in Brnovich, that election practices that were common in 1982 are presumptively legal. Or, as he also suggested in Brnovich, that state election rules are presumptively lawful so long as they supposedly combat voter fraud.
As Rick Hasen, a law professor and election law expert at the University of California Irvine, writes in Slate, Brnovich ignores “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.” Alito’s opinion in Brnovich bears the same resemblance to the text of the Voting Rights Act that Taco Bell does to Mexico.
Just as significantly, Brnovich raises serious doubts about whether this Supreme Court would strike down any state election law that discriminates on the basis of race.
One thing that surprised me after Brnovich was handed down is that my initial assessment of the opinion was slightly more optimistic than the view among many voting rights scholars, including Tolson and Hasen.
I wrote that the Supreme Court left the Voting Rights Act alive in Brnovich — if only “barely.” Hasen, by contrast, accused Alito of essentially offering “a new and impossible test for plaintiffs to meet” if they allege that they were denied the right to vote. Tolson told the legal podcast Strict Scrutiny that it’s “very difficult to determine what voting restrictions would violate” the standard laid out in Brnovich.
So let me lay out the case for why Brnovich — and the array of Roberts Court decisions limiting voting rights that proceed it — may not produce an apocalyptic crisis for American democracy. This argument has three prongs.
The first is that, while Alito’s opinion in Brnovich imposes a long list of extratextual limits on the Voting Rights Act, it doesn’t go quite as far as the Republican Party asked the Court to go. The Arizona Republican Party’s brief in Brnovich argued that “race-neutral regulations of the where, when, and how of voting do not” violate the Act — a proposal that, as Kagan pointed out at oral argument, would allow a state to require all voters to cast their ballot at a country club.
Meanwhile, Arizona Attorney General Mark Brnovich (R) suggested that voting restrictions that have a disproportionate impact on minority voters should be upheld, so long as the state didn’t cause voters of color to behave differently than white voters. Thus, under Brnovich’s standard, a state could potentially limit the franchise to country music fans — because the state didn’t cause white people to be more likely to listen to country music than voters of color.
Republicans, in other words, gave the Supreme Court two different legal standards that it could have applied in Brnovich if the Court wanted to effectively neutralize the Voting Rights Act altogether. The fact that the Court rejected these proposed standards — in an opinion that was otherwise completely shameless about its disregard for what the law actually says — suggests that some key members of the Court may have balked at the GOP’s request to shut down the Voting Rights Act altogether.
The second reason for optimism is that, while Republican state lawmakers have enacted a bevy of voting restrictions in the wake of decisions like Shelby County, most of those restrictions have not had as drastic an impact on voting as many advocates feared.
Voter ID laws, for example, which require voters to show photo ID before they can cast a ballot, are a common voter restriction favored by many Republicans. Yet, while initial research on voter ID suggested that these laws may disproportionately prevent left-leaning demographics from casting a ballot, more recent research suggests that they have no impact whatsoever. They appear to neither diminish voter turnout (as Democrats feared) nor have any real impact on voter fraud (which Republicans often highlight to justify such laws, even though voter fraud is exceedingly rare).
Similarly, a recent paper by political scientists Mayya Komisarchik and Ariel White finds that Shelby County “did not reduce aggregate Black or Hispanic voter registration or turnout,” and that turnout among these voters may have even slightly increased since the Court’s decision in 2013 — an unexpected finding that the authors think may be attributable, at least in part, to voter turnout efforts “explicitly targeted to counter potential voter suppression in the wake of the decision.”
I want to be cautious about being too optimistic here. As the Court’s decision in Perez suggests, even if eliminating preclearance did not diminish “voter registration or turnout,” it has made it easier for states to enact racial gerrymanders. And even if Democrats and voting rights advocates have thus far succeeded in countering Shelby County through countermobilization efforts, it’s unclear if those efforts will remain successful forever.
Shelby County is also less than a decade old, so it remains to be seen what impact more innovative voter suppression laws — such as the one recently enacted in Georgia — will have on turnout. But that brings us to the third reason to be cautiously optimistic.
As Nicholas Stephanopoulos, a Harvard election law professor, wrote shortly after Brnovich came down, that decision does not preclude challenges to “novel or unusual voting restrictions” because such restrictions “weren’t prevalent in 1982.” The more creative Republican lawmakers get in their efforts to restrict the vote, the more likely it is that the courts will balk.
The biggest threat facing American democracy is that state lawmakers may go beyond restrictions, such as voter ID, which make it harder for some voters to cast a ballot — and actually impose election rules that make it impossible for Democrats to win.
Think of former President Donald Trump’s failed attempts to pressure judges, state officials, and Congress into tossing out President Joe Biden’s victory in the 2020 election.
Last year, the Supreme Court literally did the least that it could possibly do to preserve democracy in the United States, by turning aside frivolous lawsuits brought by Republicans seeking to overturn Biden’s victory. But future efforts to rig elections are likely to be more subtle — and the lawyers who defend those efforts are likely to be more competent than the band of misfits Trump assembled to challenge the 2020 election.
We don’t yet know how the Court will approach those efforts.
Consider, for example, Georgia’s new law. The most troubling provision of that law permits Republican officials to seize control of local election boards that have the power to close down polling locations and disqualify voters. This is a novel form of voter suppression — it’s unlikely that many states permitted partisan officials to simply toss out Democratic ballots in 1982 — so the Court’s decision in Brnovich should not prevent courts from intervening if Georgia Republicans go that far.
But here’s the rub: Imagine that Georgia Republicans start shutting down polling precincts in the largely Democratic, majority-Black city of Atlanta shortly before the 2022 election — or imagine that, say, Arizona passes a new law one month before the election that shuts down half the precincts in Democratic neighborhoods.
The Court’s decision in Purcell held that judges should be reluctant to intervene in election-related disputes as Election Day draws close, because such decisions “can themselves result in voter confusion and consequent incentive to remain away from the polls.” Yet, more recent decisions have treated Purcell less as a practical warning that judges should avoid decisions that might confuse voters, and more like an inexorable rule that late-breaking voting rights decisions are not allowed.
The danger, in other words, is that if a state imposes last-minute voting restrictions that seek to rig an election, the Supreme Court may forbid the federal judiciary from doing anything about it.
Another unanswered question is how far this Court is willing to go in giving Republicans an unfair advantage during the next legislative redistricting cycle, which is expected to begin this fall.
In a long line of cases stretching back more than a century, the Supreme Court has repeatedly rejected something known as the “independent state legislature doctrine,” which could potentially allow state legislatures to pass election laws that can neither be vetoed by a state governor nor reviewed by the state’s courts. But four members of the Court recently endorsed this doctrine, and newly confirmed Justice Amy Coney Barrett’s views on the doctrine are unknown.
As Justice Neil Gorsuch summarized this doctrine in a 2020 opinion, “the Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules,” at least for federal elections.
In its most extreme form, Gorsuch’s approach could forbid Democratic governors from vetoing congressional gerrymanders passed by Republican legislatures. It could forbid states from using nonpartisan commissions to draw congressional maps. And it could even prevent state supreme courts from enforcing state constitutional safeguards against gerrymandering.
The biggest uncertainty surrounding the Court’s voting rights decisions, in other words, is whether the Court will enable efforts to lock Republicans into power no matter what voters do to elect their candidates of choice, or whether the Court’s majority will, at some point, tell their fellow Republicans in state legislatures that they’ve gone too far.
The answers to these questions, moreover, won’t be found anywhere in the Constitution, or in any law enacted by Congress. The Roberts Court’s voting rights cases bear far more resemblance to the old English common law, a web of entirely judge-created legal rules governing areas such as contracting and property rights, than they do to the modern, more democratic model where federal judges are supposed to root their decisions in legal texts. The future of democracy in the United States will be decided by six Republican-appointed justices’ arbitrary whims.
And, if a majority of the justices do support a wholesale attack on liberal democracy, their actions will hardly be unprecedented.
Nearly a century before President Lyndon Johnson signed the Voting Rights Act, Congress and state legislatures passed a different kind of legislation that was supposed to guarantee the franchise to people of color.
It’s called the 15th Amendment, with its command that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
The pre-Voting Rights Act United States did not deny voting rights to millions of African Americans because we lacked a legal guarantee protecting the right to vote. We did so because powerful public officials — including judges — decided that they did not care what the Constitution had to say about voting rights.
We’re about to find out whether the Supreme Court is going to repeat that history.
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