Nicholas Stephanopoulos teaches election law at Harvard Law School and submitted a friend-of-the-court brief in Brnovich v. Democratic National Committee.
So it was a shock to see the Supreme Court, in an opinion authored by none other than Alito, stacking one extra-textual constraint after another onto Section 2 of the Voting Rights Act. That provision prohibits any “standard, practice, or procedure” that makes it disproportionately harder for minority citizens to vote. In that situation, voting isn’t “equally open” to citizens of all races, and minority citizens “have less opportunity” to vote.
But Alito, and the five conservative justices who joined his opinion in Brnovich v. Democratic National Committee, were unwilling to heed this clear textual command. They invented several limits that will make it harder for plaintiffs to win future Section 2 cases — and that appear nowhere in Section 2’s language.
One of these is a requirement that a law impose more than the “usual burdens of voting,” before being struck down. But Section 2 states that it applies to any “denial or abridgment” of the right to vote. The court qualified that broad language, effectively inserting the word “substantial” before “abridgment,” with no basis in the text.
The court also manufactured out of whole cloth a principle that, even if a particular regulation is racially discriminatory, it can be overlooked if a state offers “other available means” for voting. Maybe that’s a good idea; maybe not. But it wasn’t Congress’s idea. On the contrary, Congress made clear that each electoral restriction must be analyzed separately.
The court’s most astonishing extra-textual move, however, was its pronouncement that one “relevant consideration” is “the degree to which a voting rule departs from what was standard practice” in 1982, when Section 2 was revised in response to an earlier Supreme Court ruling. Why on earth would that be? The provision never says that. In fact, Section 2’s whole point is to unsettle the status quo, to end voting restrictions that disproportionately harm minority citizens. The provision aspires to move American democracy forward, not keep it fixed forever in 1982.
The majority, then, “mostly inhabits a law-free zone,” as Justice Elena Kagan observed in her powerful dissent. And it’s easy to see why the court’s reasoning was so textually unmoored. Quite a few electoral regulations disadvantage minority citizens more than nonminority citizens. The Arizona laws upheld by the ruling Thursday — one discarding ballots cast in the wrong precinct, the other barring most third parties from delivering early ballots — indisputably do so.
So do several of the limits recently imposed by Florida, Georgia and other red states: cutbacks to mail-in voting, reductions in drop-off boxes, bans on giving water to voters waiting in line, and the like. So do photo ID requirements, the hottest flash point of the past decade’s voting wars. It’s understandable that the conservative justices were reluctant to embrace a reading of Section 2 that would threaten these policies.
Understandable — but also indefensible.
It isn’t textualism to follow statutory language only when doing so is congenial to one’s ideological allies. It isn’t textualism to flout statutory language by creating out of thin air extra-textual checks on a disfavored claim. And it isn’t textualism to interpret the Voting Rights Act as one wishes it had been written, not as Congress actually wrote it. To return to Alito’s metaphor, this is what a judicial pirate ship looks like. It flies textualist colors while plundering one of the key statutory achievements of American democracy.
Still, the extent of the pillage shouldn’t be overstated. Plaintiffs will still be able to prevail in a number of Section 2 cases. Above all, these will be challenges to novel or unusual voting restrictions. By definition, these laws weren’t prevalent in 1982. Because of their newness or distinctiveness, their impositions are also likely to exceed the standard burdens of voting in courts’ eyes.
Additionally, nothing in today’s decision undermines Congress’s authority to correct the court’s blunder. There’s not a word suggesting that a more aggressive statutory test — for example, one invalidating any practice that causes a significant racial disparity unless it’s necessary to achieve a substantial state interest — would be constitutionally problematic. Fortuitously, Congress is considering the John Lewis Voting Rights Advancement Act, which would revive a different portion of the law. That bill is the ideal vehicle to fix this problem, too. By enacting some new statutory language, Congress could bring an end to the court’s extra-textual adventurism.