At issue was a section of the Voting Rights Act (VRA), which was once the crown jewel of U.S. voting law and a foundation of political equality, that has been gutted by a Supreme Court unremittingly hostile to voting rights.
And the justices aren’t done, not by a long shot.
One of Arizona’s laws makes it a crime for most people to deliver someone else’s absentee ballot, a heretofore common practice of particular importance to Native Americans in the state, who find it challenging to vote given their wide geographic dispersion and slow mail service (but also used regularly by organizers in Black and Latino communities). The other law says that if you vote in the wrong precinct, the state will throw out your entire ballot, even the votes for races where the precinct is irrelevant (e.g., president).
The laws were challenged as violating the VRA because they disproportionately affect minority voters. As the plaintiffs pointed out, minority voters in Arizona are about twice as likely to mistakenly vote in the wrong precinct for a variety of reasons.
Did the Republicans who put that law in place understand that? Oh, you bet they did.
Section 2 of the VRA says statutes are invalid if they have the effect of harming people’s ability to vote on the basis of their race, even if you can’t prove that the party that passed it was doing so with racist intent. Whether that section of the VRA has any meaning in the wake of this decision is an open question.
The decision, written by Justice Samuel A. Alito Jr., argued that the system in Arizona offers ample opportunity for everyone to vote, even if it seems to fall heavier on some people, and concluded that the state’s interest in preventing voter fraud outweighs whatever overall disparate impact the law has.
The fact that voter fraud is almost entirely fictional did not disturb the justice.
In a blistering dissent, Justice Elena Kagan wrote that the majority had essentially invented its own reading of the VRA, and accused the majority of pretending not to know that such state laws are occurring in a context where efforts to suppress minority voters continue.
“No one would know this from reading the majority opinion,” Kagan remarked.
Kagan’s disgust is appropriate. This case is part of a long and ignominious campaign by the court’s conservatives to hollow out American democracy in any way they can, so long as doing so helps the Republican Party. For this court, no voting rights provision is too sacrosanct to strike down and no voter suppression law is too discriminatory to uphold. If next week Republican-controlled states brought back poll taxes and literacy tests, the court would probably find a reason to validate them.
In the past few years, this court has again and again taken a hammer to the rules meant to ensure free elections in which all Americans can participate on an equal footing. Let’s remind ourselves:
- In 2010, the justices said corporations have the right to use their billions to influence elections.
- In 2011, they struck down a public financing law meant to allow candidates relying on small donations to compete with self-financed millionaires and billionaires.
- In 2013, they struck down the heart of the Voting Rights Act, claiming it was no longer necessary because racism is pretty much over.
- In 2018, they upheld ruthless voter purges that disenfranchise thousands of voters.
- In 2019, they ruled that partisan gerrymandering, no matter how clearly it disenfranchises people, is beyond the ability of the courts to do anything about.
The partisan commitment of this court is so clear that in oral arguments, the lawyer for the Arizona GOP comfortably declared that the party has standing to support the law throwing out ballots cast at the wrong precinct because counting such votes “puts us at a competitive disadvantage relative to Democrats.” He knew who he was talking to.
The big picture here is that the court’s conservatives operate according to the “heads we win, tails you lose” approach to voting rights, in which with only the occasional exception, the best predictor of how a voting rights case will turn out is which side the Republican Party is taking.
Pretty much the entire GOP is now committed to the idea that if elections were fair, they’d lose — so elections must not be allowed to be fair. That’s why they’ve been on a tear at the state level, passing dozens of laws making voting more cumbersome, inconvenient and difficult, all aimed directly at populations they believe are more likely to vote for Democrats.
Wherever those laws pass, they’re being challenged in court. But what’s going to happen when those challenges make their way to the Supreme Court, with its 6-to-3 conservative supermajority? The answer is all too clear.