There may have been no supreme court decision this year more important this year than the one in Brnovich v Democratic National Committee.
In a 6-3 ruling that broke down along ideological lines, the court's conservative justices upheld two Arizona voting restrictions and considerably weakened section 2 of the Voting Rights Act, the landmark 1965 civil rights law.
It was an opinion that arrived at a moment of crisis in American democracy. Republicans have proposed hundreds of measures across the country that would make it harder to vote. Nonetheless, Samuel Alito, the conservative justice writing on behalf of the majority, set an extremely high bar to challenge voting law under the Voting Rights Act in the future, writing that challengers must prove, among other things, that a restriction went beyond the "usual burdens" of voting.
In a scorching dissent, liberal Justice Elena Kagan bluntly criticized the majority's attack on the Voting Rights Act and the irreparable damage the court was doing to the foundation of American democracy.
Here are a few key takeaways from Kagan's opinion:
'A perilous moment'
While the court's decision deals with two Arizona restrictions passed several years ago, Kagan contextualizes the case by raising alarm about ongoing voter suppression efforts. She decries new laws that shorten voting hours, impose new requirements to vote by mail, and even ban food and water to voters standing in line.
"The court decides this Voting Rights Act case at a perilous moment for the nation's commitment to equal citizenship," she writes. "It decides this case in an era of voting-rights retrenchment – 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."
The supreme court has destroyed the Voting Rights Act
Kagan spends a considerable portion of her opinion describing the history that led to the passage of the Voting Rights Act and the importance of the law.
Then she accuses her colleagues of damaging it.
"What is tragic here is that the court has (yet again) rewritten – in order to weaken – a statute that stands as a monument to America's greatness, and protects against its basest impulses," she writes.
She also is unsparing in her criticism of Shelby County v Holder, the 2013 supreme court ruling that gutted another critical part of the Voting Rights Act.
"Maybe some think that vote suppression is a relic of history – and so the need for a potent section 2 has come and gone," she writes. The remark is a thinly-veiled retort to Chief Justice John Roberts, who wrote the Shelby County opinion and said "things have changed in the south."
"Efforts to suppress the minority vote continue," she writes. "No one would know this from reading the majority opinion."
The supreme court does not understand voting discrimination
A pivotal part of the majority's opinion is its finding that the Arizona laws in question do not impose a big enough burden on minority voters to constitute a violation of the Voting Rights Act.
But Kagan points out that what may seem like mere inconvenience to some voters may actually be a severe burden on others. A ban on handing out water to people standing in line to vote may be just an inconvenience in neighborhoods where lines at the polls are short, but a more severe burden in places where there are long lines (Black and Hispanic voters are more likely than whites to face longer waits to vote).
The court's majority also misses a larger point, Kagan writes. One of the most effective forms of voter suppression is death by a thousand paper cuts, piling voting inconvenience on top of voting inconvenience. By ignoring these inconveniences, the supreme court is enabling this kind of voter suppression, Kagan argues.
"In countenancing such an election system, the majority departs from Congress's vision, set down in text, of ensuring equal voting opportunity. It chooses equality-lite."
One of the challenged Arizona provisions in the case was a law that required officials to reject ballots from voters who were qualified to vote, but showed up in the wrong precinct. A key piece of evidence in the case was data showing that people of color were about twice as likely to have their ballots rejected as white voters. Arizona rejected more than 38,000 ballots between 2008 and 2016, far more than any other state.
Nonetheless, the court's conservative majority rejected that evidence, noting it affected just 1% of Hispanic, Black and Native American voters, leaving the majority of Arizona voters unaffected.
That thinking drew a blistering response from Kagan. "Suppose a State decided to throw out 1% of the Hispanic vote each election. Presumably, the majority would not approve the action just because 99% of the Hispanic vote is unaffected," she wrote.
"A rule that throws out, each and every election, thousands of votes cast by minority citizens is a rule that can affect election outcomes," Kagan added. "If you were a minority vote suppressor in Arizona or elsewhere, you would want that rule in your bag of tricks. You would not think it remotely irrelevant."
Kagan also rips the majority for failing to consider the full impact of one of the Arizona laws on Native American voters.
"Except in a pair of footnotes responding to this dissent, the term 'Native American' appears once (count it, once) in the majority's five-page discussion of Arizona's ballot-collection ban," Kagan writes. "So of course that community's strikingly limited access to mail service is not addressed. In the majority's alternate world, the collection ban is just a 'usual burden of voting' for everyone."
The voter fraud myth
One of the most important parts of the majority opinion asserts that concerns over voter fraud can be used to justify voting restrictions.pushes back on this, noting that America has a long history of using claims of voter fraud as a pretext to suppress votes.
Kagan pushes back on this, noting that America has a long history of using claims of voter fraud as a pretext to suppress votes.
"Throughout American history, election officials have asserted anti-fraud interests in using voter suppression laws. Poll taxes, the classic mechanism to keep black people from voting, were often justified as 'preserv[ing] the purity of the ballot box [and] facilitat[ing] honest elections,'" she writes.
'Mostly made up'
Writing for the court's majority, Alito says the ruling is based on "careful consideration" of the text of section 2 of the Voting Rights Act.
But Kagan doesn't buy that at all. She notes that the text of section 2 categorically prohibits any voting law that denies equal access to the ballot box based on race.
"The majority's opinion mostly inhabits a law-free zone. It congratulates itself in advance for giving section 2's text 'careful consideration'. And then it leaves that language almost wholly behind. (Every once in a while, when its lawmaking threatens to leap off the page, it thinks to sprinkle in a few random statutory words)," she writes. "The majority instead founds its decision on a list of mostly made-up factors, at odds with section 2 itself."
Sam Levine, The Guardian, July 8, 2021
Voices4America Post Script. Since the July 1 Supreme Court 6-3 attack on Voting rights, I have looked to highlight Justice Kagan's RBG-Like dissent, which points the way for the Congress to recast a vote for voting rights. Thank you, Sam Levine who wrote this summary of Kagan's blistering dissent. We need H.R.1 and the John Lewis bill. #SaveDemocracy