On Thursday, the U.S. Supreme Court’s conservatives ruled 6-3 along ideological lines to strike a historic blow against the Voting Rights Act in overturning a 9th Circuit Court of Appeals ruling that had found that two voting laws passed by Arizona Republicans had both the effect and intent of discriminating against Black, Latino, and Native American voters. The decision reversed earlier findings of intentional discrimination and will make it much harder to block other laws that have a discriminatory effect on voters of color, bringing America one major step closer to reviving the legal regime of Jim Crow.
The Supreme Court's ruling significantly increased the level of discriminatory and burdensome effects that plaintiffs must demonstrate for a voting law or procedure to violate the Voting Rights Act, giving lawmakers or officials who enact such rules great deference in the interest of preventing supposed fraud—even without any evidence of such fraud. The decision opens the floodgates to a new nationwide wave of Republican voter suppression laws that hide their racist intent but have clearly disparate effects based on race.
Last year, the 9th Circuit blocked both GOP-supported measures: one that bars counting votes cast in the wrong precinct but in the right county, and another that limits who can turn in another person's absentee mail ballot on a voter's behalf.
Arizona had largely transitioned to mail voting even before the pandemic, but the 9th Circuit observed that only 18% of Native American voters receive mail service, and many living on remote reservations lack reliable transportation options. Because of that situation, it was common for some voters to ask others in their community to turn in their completed ballots, a practice that Republicans have sought to deride as "ballot harvesting" in an attempt to delegitimize it. The GOP's law had limited who could handle another person's mail ballot to just close relatives, caregivers, or postal service workers.
The 9th Circuit's ruling also invalidated a separate provision that prohibited out-of-precinct voting, in which a voter shows up and casts a ballot at the wrong polling place but in the right county on Election Day. Under that law, voters in such circumstances could only cast provisional ballots, which were automatically rejected if it was later confirmed that the voter had indeed shown up at the wrong polling place.
The appeals court decision relied on Section 2 of the Voting Rights Act, which prohibits laws that have a discriminatory effect against racial minorities regardless of whether there was an intent to discriminate. The finding of a discriminatory effect is critical because it's often much more difficult if not impossible to prove that lawmakers acted with illicit intent; by contrast, statistical analysis can more readily prove that a law has a disparate negative impact on protected racial groups.
It's this so-called "effects test" that was the key remaining plank of the Voting Rights Act following the Supreme Court's notorious 2013 decision in Shelby County v. Holder, which invalidated a requirement that many jurisdictions with a history of voter discriminatory had to obtain Justice Department approval to make any changes to voting procedures. Another critical part of the VRA was further weakened in 2018 in another Supreme Court case, Abbott v. Perez, which made proving intentional discrimination considerably harder except in truly egregious instances.
Some legal observers had warned before this latest decision, known as Brnovich v. DNC, that even if the effects test weren’t formally struck down, the Supreme Court could make it so difficult to comply with the requirements to prove discrimination that the VRA would nevertheless become meaningless. That is, in essence, what happened.
Brnovich normalizes the voting landscape as it stood in 1982, the year that Congress amended the VRA to establish the effects test in response to a 1980 Supreme Court decision that required proof of intentional discrimination to successfully prosecute a vote-dilution case. Notably, that amendment sought to block discriminatory voting laws, not preserve the status quo—a fact that did not stop the court's conservative majority from setting 1982 as its new baseline.
Given how much narrower voting access was 40 years ago, the ruling likely spells disaster for many upcoming voting lawsuits over the wave of restrictions Republicans have passed this year to curtail practices like early and absentee voting. (Vox's Ian Millhiser, however, posited that new restrictions that didn't exist in 1982 will be treated more skeptically.)
While the court did not formally strike down what remained of the Voting Rights Act by ruling Section 2 itself unconstitutional, its decision came close to rendering the VRA inert for vote-denial cases. And politically, it signals that the court is increasingly willing to show itself as a partisan actor eager to find reasons to reach its preferred conclusions to the benefit of Republicans and move the goalposts whenever necessary to do so.
Between 20 years of regular Republican minority rule in the White House, Senate, House, and state legislatures, along with the series of Supreme Court decisions that have dismantled the VRA and protected partisan gerrymandering, the semblance of true democracy that only came to America in 1965 with the VRA's passage may now have ceased to exist and given way to what experts call "competitive authoritarianism."
Under such a regime, elections still take place with all the trappings of democracy, but they are not truly free and fair. And on the vanishingly rare occasions that the oppressed party is nevertheless able to win control of the government against all odds, it is so constrained by rigged institutions—such as courts stacked with partisans—that it's unable to effectively enact any agenda. That situation comes close to describing what Washington Democrats are struggling with right now, despite having won millions more votes than Republicans in recent elections at all levels.
If Democrats are serious about restoring a truly equitable, multi-racial democracy, Congress must act without delay. Democrats have what may be their last, best chance before they could lose control of the Senate and House next year. That entails passing a new Voting Rights Act and the For the People Act, with its sweeping expansion of voting protections and ban on congressional gerrymandering; adding new states such as Washington, D.C. to end the disenfranchisement of American citizens and help rebalance the Senate; enacting laws to prevent the subversion of election results by partisan officials; and expanding the Supreme Court itself.
To pass these reforms, Democratic holdouts such as Sens. Joe Manchin and Kyrsten Sinema must stop clinging to the filibuster and either eliminate or curtail it. They have, however, given no indication that they'll do so.
This story has been updated.