Around 10 am on Thursday, many voting rights observers had a collective heart attack when they read the eight words that they had been most dreading: “JUSTICE ALITO delivered the opinion of the Court.”
These words appeared above the Court’s decision in Brnovich v. DNC, a case challenging two Arizona voting restrictions, and that had the potential to destroy what remains of the Voting Rights Act and weaken federal voting rights law to a point that hasn’t been seen since Jim Crow. And they announced that Samuel Alito, the Court’s most reliable Republican partisan, had written the majority opinion in Brnovich.
And yet, the opinion that followed Alito’s name is more measured than could have reasonably been expected from a Court where Republican appointees hold a 6-3 supermajority. It’s not, by any means, a good decision for democracy. Brnovich upholds both Arizona laws — a provision that disenfranchises voters for casting a ballot in the wrong precinct, and another that prevents most third parties from delivering another voter’s absentee ballot to a polling place. But Alito’s opinion most likely preserves civil rights plaintiffs’ ability to challenge many of the most odious provisions of the voter suppression laws currently being pushed by Republican state lawmakers in other states.
For starters, the opinion is limited in scope. Brnovich does not apply to all Voting Rights Act cases, or even to all cases involving the law’s “results test” — the specific provision of the Voting Rights Act at issue in the case. Rather, the opinion limits its analysis to “cases involving neutral time, place, and manner rules” governing elections. Thus, while Brnovich does shrink the Voting Rights Act considerably, it primarily does so in this limited context.
Second, while Republican litigants proposed various interpretations of the Act that would have read a key prong of the Voting Rights Act so narrowly as to render it meaningless, Alito’s opinion explicitly refuses to embrace those interpretations. “We decline in these cases to announce a test to govern all VRA §2 claims involving rules, like those at issue here, that specify the time, place, or manner for casting ballots,” Alito writes.
Instead, Alito lays out five factors that govern future “time, place and manner” lawsuits (more on this five-factor test below). One of the practical upshots of these five new factors is that states will largely be free to enact voting rules that were common in 1982, when a key amendment to the Voting Rights Act became law. But novel restrictions on the right to vote are less likely to survive judicial scrutiny.
It should be emphasized that small-d democrats have nothing to celebrate after the decision in Brnovich. Alito’s opinion does weaken the Voting Rights Act. It endorses phantom fears about “voter fraud,” a phenomenon that barely exists. And it permits lawmakers to enact voting restrictions intended to combat this largely imaginary problem.
But, while Brnovich is a blow to liberal democracy, it is not an apocalypse. Though two justices, Clarence Thomas and Neil Gorsuch, joined an opinion suggesting that they would cut off all private suits enforcing the Voting Rights Act altogether — potentially neutralizing the law during Republican administrations — the other justices did not. The law survives, albeit in a significantly weakened state.
Why voting rights advocates were terrified of Brnovich
One reason why many supporters of democracy, including myself, believed that Brnovich could be a total disaster is that the Court has shown tremendous hostility toward the Voting Rights Act in recent years.
The Voting Rights Act of 1965 is the seminal law that broke the back of Jim Crow, along with the previous year’s Civil Rights Act of 1964. It is arguably the most successful civil rights law in American history, and it was this nation’s first serious legislative attempt since Reconstruction to build a pluralistic democracy rooted in the principle of racial equality.
When President Lyndon Johnson signed the Act into law, only 6.7 percent of Black voters in Mississippi were registered to vote. Just two years after the Voting Rights Act became law, that number skyrocketed to almost 60 percent.
Under a 1982 amendment to the law, the Voting Rights Act has three prongs, but the Supreme Court has either deactivated or severely weakened two of these prongs. The first is “preclearance,” which required states with a history of racist voting practices to “preclear” any new voting practices with officials in Washington, DC — in order to ensure that those practices did not discriminate on the basis of race.
The Supreme Court gutted preclearance in Shelby County v. Holder (2013).
The second prong of the Voting Rights Act is known as the “intent test,” and it prohibits state voting practices enacted with racist intent. But, in Abbott v. Perez (2018), the Supreme Court held that lawmakers enjoy such a high presumption of racial innocence that it is nearly impossible to prove invidious intent, except in the most egregious cases.
That leaves the third prong of the law, known as the “results test,” which derives from the Voting Rights Act’s language forbidding a state election practice that “results in a denial or abridgement of the right ... to vote on account of race or color.” Given the Court’s decisions in Shelby County and Perez, many voting rights lawyers of all political persuasions believed that the Court would use Brnovich as a vehicle to neutralize the results test. Indeed, the Republican litigants in Brnovich actively encouraged the Supreme Court to do so.
The Arizona Republican Party’s brief in Brnovich, for example, claimed that “race-neutral regulations of the where, when, and how of voting do not implicate” the results test. As Justice Elena Kagan noted at oral argument, this interpretation of the Voting Rights Act would allow a state to require all voters to cast their ballot at a country club.
But the GOP’s proposed test did not prevail. Instead, the Court handed down a somewhat unwieldy five-factor test.
Brnovich’s new five-factor test, briefly explained
Alito’s opinion is vague, and it leaves as many questions open as it answers. When courts are faced with “time, place, and manner” cases under the Voting Rights Act, he writes, “any circumstance that has a logical bearing on whether voting is ‘equally open’ and affords equal ‘opportunity’ may be considered.” Nevertheless, he also provides a non-exhaustive list of five factors that “should be mentioned.”
Briefly, those five factors are:
- “The size of the burden imposed by a challenged voting rule.”
- “The degree to which a voting rule departs from what was standard practice when [the Voting Rights Act] was amended in 1982.”
- “The size of any disparities in a rule’s impact on members of different racial or ethnic groups.”
- “The opportunities provided by a State’s entire system of voting when assessing the burden imposed by a challenged provision.”
- “The strength of the state interests served by a challenged voting rule.”
Needless to say, these fairly open-ended factors will provide a great deal of fodder for election lawyers. As Alito notes in describing the first factor, “every voting rule imposes a burden of some sort. Voting takes time and, for almost everyone, some travel, even if only to a nearby mailbox,” so judges will have to sort laws that impose these kinds of unavoidable burdens from those that impose much more severe restrictions.
Likewise, Alito’s third factor is likely to trigger all sorts of litigation over just how much of a voting restriction must fall on voters of color before that restriction crosses the line into illegality, though the Brnovich opinion itself does provide some guidance on this point.
The specific voting restrictions in Brnovich concern Arizona laws that disenfranchise voters who cast a ballot in the wrong precinct, and that prevent third parties from delivering a voter’s absentee ballot to the polls (although there are some exceptions to this later provision). On the first of these two restrictions, Alito notes that “in the 2016 general election, a little over 1% of Hispanic voters, 1% of African-American voters, and 1% of Native American voters who voted on election day cast an out-of-precinct ballot,” while “for non-minority voters, the rate was around 0.5%.”
This disparity, according to Alito, is too small to matter under the Voting Rights Act. Though voters of color were twice as likely to be tripped up by the out-of-precinct rule, Alito writes that “a policy that appears to work for 98% or more of voters to whom it applies—minority and non-minority alike—is unlikely to render a system unequally open.”
One impact of this decision, in other words, is that many laws that have a disparate impact on voters of color will be upheld — though it is not yet clear just how severe a law’s impact on minority voters must be before the courts will intervene.
Alito also makes several other points in his opinion that will likely give voting rights advocates heartburn. Although voter fraud barely exists — a study of the 834 million ballots cast in the 2000-2014 elections found only 35 credible allegations of in-person voter fraud, for example — many state lawmakers claim that they need to enact voting restrictions in order to combat such fraud. Alito more or less endorses this practice, writing that “one strong and entirely legitimate state interest is the prevention of fraud.”
Similarly, Brnovich strongly suggests that lawmakers are free to enact election regimes that were commonplace in 1982. Moreover, as Alito writes, “it is relevant that in 1982 States typically required nearly all voters to cast their ballots in person on election day and allowed only narrow and tightly defined categories of voters to cast absentee ballots.” That’s bad news for lawsuits challenging attempts to limit early or absentee voting.
At the same time, however, Alito’s opinion also leaves the door open to challenges to truly egregious attacks on the right to vote. The most troubling provision of Georgia’s new voter suppression law, for example, allows Republican officials to effectively take over local election boards that have the power to close polling places and disqualify voters. If the Georgia GOP abuses this power, they will likely need to find 40-year-old examples of states that permitted such partisan takeovers of the election process.
The upshot of Brnovich, in other words, is that it gives states tremendous power to roll back expansions of voting rights such as early voting and expanded access to absentee ballots, although that power may be limited if such restrictions are imposed in ways that clearly target voters of color.
The Court’s decision still leaves the door open to some voting rights challenges, and Alito’s vague five factors give voting rights advocates plenty of fodder to attack the most virulent recent attacks on voting rights — though it remains to be seen if those attacks succeed.
Brnovich is a bad decision, if you care about the right to vote. And the Court’s decision must be read alongside Shelby County and Perez, which dealt severe blows to the right to vote. The Voting Rights Act still lives, but it is a shadow of its former self. And, so long as a handful of Senate Democrats insist on maintaining the filibuster, legislative efforts to restore more robust voting rights protections are doomed.
And yet, from a 6-3 Court, Alito’s Brnovich decision is probably the best that both large-D Democrats and small-d democrats could have hoped for.