In gutting Voting Rights Act, the Supreme Court adopts the Republican narrative on voting

The Supreme Court — in stunning judicial activism — has essentially gutted the Voting Rights Act of 1965. This will make it very difficult to overturn laws restricting voting now being adopted in many states.

The United States has a long and disgraceful history of racial discrimination in voting. In 1965, despite the efforts of the civil rights movement, only 27% of Black Georgians, 19% of Black Alabamians and 7% of Black Mississippians were registered to vote.

The Voting Rights Act of 1965 combated this by requiring that jurisdictions with a history of race discrimination in voting get “preclearance” from the attorney general. When last in effect, it required that nine states, mostly Southern, get approval before changing their election systems. This was effective in blocking hundreds of discriminatory laws from going into effect.

But in 2013, the Supreme Court’s ruling in Shelby County v. Holder nullified the requirement for preclearance, saying it was unconstitutional for Congress to treat some states differently. Immediately, states like North Carolina and Texas put discriminatory laws into effect.

Still in effect was Section 2 of the Voting Rights Act, which prohibits state and local governments from having election systems discriminate against minority voters. Congress revised the law in 1982 to clarify that proof of a racially discriminatory impact is sufficient to prove a violation of the law.

Unfortunately, in Brnovich v. Democratic National Committee, the conservatives on the Supreme Court dealt a severe blow to this provision. The case involved two Arizona laws: One saying that a ballot is not to be counted if it was cast by a person outside their precinct, and the other prohibiting “ballot harvesting,” making it a felony to collect and deliver another person’s completed ballot (with some exceptions).

The United States Court of Appeals for the Ninth Circuit concluded that these provisions violated the Voting Rights Act because of their proven discriminatory effect against voters of color.

Then, the Supreme Court reversed course, stressing the ability of states to adopt laws based on a desire to prevent voter fraud. He articulated five considerations — none of which are mentioned in the statute, and all of which increase the burden on those challenging state laws restricting voting. This is going to make it likely impossible to challenge restrictive voting laws, like those adopted by states like Georgia, Florida, and Arkansas.

As Justice Elena Kagan lamented in her dissent, the Court “undermine[d] Section 2 and the right it provides.” It’s striking that a conservative majority that professes to interpret statutes solely based on their text did exactly the opposite in imposing limits on its applicability that are nowhere mentioned in the law.

The Republican narrative about voting is that voter fraud is a significant problem and laws restricting voting are needed to combat fraud. Opinion polls show that 70% of Republicans believe Donald Trump won the 2020 election and fraud denied him the White House.

The Democratic narrative is that the major problem with voting is suppression of minority voters and that recently enacted state laws will have exactly that effect. Under this view, voter fraud is rare; every court, without exception, to consider the 2020 election found no basis for concluding that fraud had any effect on the outcome.

Republicans view lower voter turnout, such as by restricting absentee ballots, as enhancing their chances of prevailing. Democrats want to increase turnout. Black Americans vote Democratic most of the time, so any restrictions on voting are sure to have a racially discriminatory impact.

The Supreme Court has six justices appointed by Republican presidents and three chosen by Democratic presidents. The Court, in a 6-3 decision, clearly accepted the Republican narrative about voting.