The first major blow came in 2013, when the court eviscerated the act’s Section 5, which required states with a history of racial discrimination to preclear changes to voting rules with the Justice Department. The decision left in place a backstop, Section 2, which allows legal challenges to discriminatory election rules after they have been enacted. On Thursday, the Roberts court sharply limited that provision as well.
The court upheld two Arizona election rules the Democratic National Committee claimed discourage minority voting. The legitimacy of Arizona’s policies could be debated, and the court could have struck them down without indulging in dangerous overreach. But in its reasoning and guidance for future cases, the six justices in the majority, including the chief, flashed a green light to state lawmakers eager to erect new barriers to voting.
The majority imposed stipulations on applying Section 2 that “all cut in one direction — toward limiting liability for race-based voting inequalities,” Justice Elena Kagan pointed out in a dissent. This new list of restrictions, Justice Kagan continued, “stacks the deck against minority citizens’ voting rights. Never mind that Congress drafted a statute to protect those rights.”
The majority invites states to argue that unnecessarily strict voting rules impose no more than mild burdens on casting ballots, despite the fact that the Voting Rights Act was meant to eliminate obvious as well as subtle forms of voting discrimination. What may appear to be mere inconveniences or seemingly race-neutral rules can in practice reduce minority voting. Some of that is fine, the court said. While admitting that one of the Arizona laws in question disproportionately affects Black, Latino and Native American voters, the majority declared that the difference was too small to matter. Yet elections are often decided by fractions of percentage points, and every vote should be seen as precious.
The court also encouraged states to argue that worries about fraud and voting integrity justify new burdens on the right to vote — though there is little or no evidence that the fraud state leaders claim they are fighting actually occurs. From the nation’s Jim Crow past to its voter-suppression present, states have claimed that they merely want to ensure ballot integrity as they impose voting restrictions that disproportionately burden minority voters. The Supreme Court lent legitimacy to their search for pretext.
Chief Justice Roberts’s 2013 ruling gutting the Voting Rights Act’s Section 5 unleashed states to impose new voting restrictions designed to discriminate. The court’s Thursday ruling will trigger a new round, as Republican-led states already engaged in imposing a new wave of voter-suppressing laws will be further emboldened. If the act’s text left the court no other option, this outcome would have been regrettable but understandable. In fact, as Justice Kagan put it, “the Court has (yet again) rewritten — in order to weaken — a statute that stands as a monument to America’s greatness, and protects against its basest impulses.”