The recent Brnovich v. Democratic National Committee decision by the Supreme Court is, to me, the sharpest nail yet in the coffin for the Voting Rights Act of 1965. While the much-discussed Shelby v. Holder decision severely weakened the ability of the federal government to block restrictive voting measures before they are enacted, the most recent decision expands what type of restrictions can pass constitutional muster. At heart is Section 2 of the Voting Rights Act, which makes any policy or procedure that makes it more difficult for minorities to vote illegal. The purpose of the section is obvious—something apparently neutral on its face can have severely disparate impacts on access to the franchise for certain groups.
Specifically, the ruling upholds Arizona’s ban against “ballot harvesting,” where a third party collects sealed ballots to deliver them to election officials. In a state such as Arizona, such mechanisms are needed because Native Americans are far less likely to be served by the postal service. Physically delivering their ballots requires a range of coordination that many urban and suburban and rural people in the United States could not imagine. Many Native Americans in Arizona live more than 20 miles from the nearest polling location so casting in person ballots is difficult.
The Court also upheld a provision that dismisses entirely ballots cast at the incorrect precinct. In many states, voters are allowed to cast a provisional ballot if they arrive at the wrong polling location, and after verifying that the vote is authentic (the voter has not voted anywhere else, for example), the provisional ballot is counted. Although the court saw that this provision would result in far more Black ballots dismissed than white ballots (due to greater mobility and, in perverse instances, more changes in precinct locations election to election) it is now constitutional given this ruling.
At a broad level, the Court has decided that racially discriminatory provisions are constitutional if there are “other available means” for people to cast ballots. No such allowance is in the Voting Rights Act itself, so the Court has “legislated from the bench” to create its existence. The court has also seen fit to stop the clock of interpretation at 1982, when Section 2 was last revised. How this will impact the broad range of restrictions being enacted in state after state remains unclear.
Most disturbing, the Court has seen fit to allow one outcome of racial inequality to negate an argument that racial inequality is at play. Specifically, in proving that there is disparate impact for minority voters, the Court now says that if other factors are to blame (such as poverty) then the case will be much harder to prove. This sort of logic is one reason why many legal observers believe that the decision in Brnovich v. Democratic National Committee will be the effective end of Section 2 of the Voting Rights Act. Under the new standards set forth, only an extremely egregious provision would be likely to be struck down.
Social scientists have been rather muted in their response, perhaps buoyed by findings in the literature that strict voter ID laws do not deter voters, and some evidence that mobilization in the form of increased voter contact might play a mitigating role. Still, research finds that Black voters wait significantly longer to vote, and the impact of the latest wave of voting restrictions is unknown. Missing from this discussion is the fact that electoral outcomes should not be the metric we use to judge the effectiveness of voter suppression efforts. Any restriction that places more burdens on voting for one population versus another is voter suppression in practice. The fact that minority communities repeatedly redouble their efforts to make their voices heard at the ballot box should not negate the fact that state legislatures are trying to silence them in a revisioning of Jim Crow practices.
These suppression tactics, while sold as efforts to prevent fraud, act as a tax on minority voters, political organizations, and our representative democracy. They seek to change, at the margin, the cost of voting for some groups versus others. They are linked, rhetorically and in their intent, in claims of illegitimacy and enfranchisement that precede the Civil War. We should never forget that American democracy is quite young. Whatever appeals Americans make to rhetoric and ideals, our “democracy” was quite happy with a highly restrictive franchise until the 1960s. With this recent decision, the likelihood that our democracy reaches its 60th birthday is quite a remote one.