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The U.S. Supreme Court just made it easier for states to prevent citizens from casting ballots.
The opinion, in a case called Brnovich v. Democratic National Committee, is the latest in a series from the country’s highest court to peel away federal protections against voting laws that discriminate on the basis of race, color or membership in a language minority group.
Put simply, the decision could create challenges to defend the right to vote by Black and brown citizens that they have not faced since the U.S. Congress passed the Voting Rights Act of 1965.
Conservative Justice Samuel Alito wrote the majority opinion in a 6-3 decision split along ideological lines. Alito created five guidelines for bringing successful lawsuits under Section 2 of the Voting Rights Act that dissenting judges argued were contradictory to the purpose and language of the statute itself.
The effect on North Carolina
For civil rights groups that have turned to the courts to challenge discriminatory voting laws since the Supreme Court struck down Section 5 of the Voting Rights Act in the 2013 case Shelby v. Holder, this ruling comes as a blow, according to Caitlin Swain, co-director of the North Carolina-based group Forward Justice.
“It’s going to require more money and more resources going into these trials with less certainty that there is going to be justice,” Swain said, adding that there will be “lengthier legal fights, which delays the ability to have certainty for the elections.”
But Swain, along with other voting rights advocates in North Carolina, stresses that Section 2 is not dead. Voters can still bring winning claims against states — it will just be more burdensome.
The Brnovich decision made the call from voting rights advocates for the U.S. Congress to pass an update to the Voting Rights Act even more urgent. The bill has passed the U.S. House but is held up in the Senate over uniform opposition by Republican senators, including Richard Burr and Thom Tillis representing North Carolina. Democratic Sens. Joe Manchin from West Virginia and Arizona’s Kyrsten Sinema also oppose the bill, giving Democrats a 52-48 disadvantage.
Without the federal legislation, the Brnovich decision puts pressure on state courts to defend voting rights, according to Rick Su, a law professor at the University of North Carolina. Historically, when the Supreme Court changes members and becomes less friendly to certain legal claims, those litigators find different avenues to pursue.
The incentives are mounting for litigators to move to state court.
The court under the leadership of Chief Justice John Roberts has been consistently antagonistic to voting claims.
“When you couple this opinion with the 2008 ruling in the Crawford case … the 2013 ruling in Shelby County killing off the preclearance provision of the Voting Rights Act … and today’s reading of Section 2, the conservative Supreme Court has taken away all the major available tools for going after voting restrictions,” wrote Rick Hasen, law professor at the University of California Irvine, in his influential Election Law Blog on Thursday.
North Carolina’s courts have been moving in the opposite direction with a majority-Democratic Supreme Court. North Carolina uses partisan elections to select who will serve on the state Supreme Court.
In addition, the state constitution is “more detailed and specific than the federal Constitution in the protection of the rights of its citizens,” according to a Superior Court, three-judge-panel ruling in Common Cause v. Lewis.
But the state courts may only be a refuge for voting rights litigators for a short while longer. Democrats currently have a 4-3 majority on the state Supreme Court, and all four Democrats are up for reelection before any of their Republican counterparts.
“These precedents are possibly only as good as you have the majority on the court itself,” Su said.
Su said his analysis was cynical and that courts are supposed to respect precedent, though he also pointed to research showing that partisan-elected judges tend to be more political.
With the federal protections weakened, Su described a self-perpetuating cycle of voter suppression that will heighten the politicization of the state courts.
With the requirement for federal preclearance for changes in voting laws in many Southern states struck down in the Shelby case, voting rights advocates have increasingly turned to the courts to prevent discriminatory laws from going into effect. As the Supreme Court closes the door to the federal courts, litigants in North Carolina are turning to the state courts.
Su said he anticipates more political campaign focus on judicial seats, especially at the state Supreme Court level. This already happened in the last election, when Republican Paul Newby ousted Democrat Cheri Beasley by 401 votes, or 0.007% of the ballots cast in that election.
“That’s just going to be part of the political football going forward and, of course ironically, all that gets affected by the election laws that ends up getting enacted,” Su said.
‘A little voter suppression is not OK’
In a political environment in which every last ballot is bitterly contested, Alito’s opinion gives states leeway when defending the scope of disenfranchisement caused by new voter laws.
Lawsuits and election challenges dominated the 2020 election in North Carolina. In the Newby and Beasley race, each candidate filed petitions with numerous county boards of elections in a fight to count — or reject — ballots.
The election litigation also pitted Phil Berger and Tim Moore, leaders of the state Senate and House, respectively, against the N.C. State Board of Elections and Democratic Party-backed litigants in a monthslong fight over what amounted to about 0.2% of ballots cast in the state.
That is the margin of victory partisans in North Carolina are concerned about.
In Arizona, where the Brnovich case originated, Joe Biden defeated Donald Trump by 0.3% of the vote.
But in his opinion, Alito created weak guidelines for disparities in voter impact and rates of disenfranchisement, though he did not establish specific standards or tests by which to measure what is acceptable, according to Jennifer Nwachukwu, an elections lawyer for the nonpartisan Lawyers’ Committee for Civil Rights Under Law, a national civil rights advocacy organization.
“To the extent that minority and nonminority groups differ with respect to employment, wealth and education, even neutral regulations, no matter how crafted, may well result in some predictable disparities in rates of voting and noncompliance with voting rules,” Alito wrote.
The existence of some disparities does not mean that an equal opportunity to vote does not exist, Alito wrote.
But this is a weakening of the standards that voting rights advocates have sought to use in the past, Su said.
For Nwachukwu, this framing is a problem because states are currently pursuing voting laws that make it harder for some groups to vote.
“All Americans should be able to vote free from discrimination,” Su said. “Discrimination is not something of the past. It’s still very prevalent in our society today.”
Alito’s ruling also created guidelines favorable to states in analyzing whether their laws are sufficiently open by looking at the cumulative positive impacts of voting laws, but not the negative ones, according to Mitchell Brown, an elections lawyer at the nonprofit Southern Coalition for Social Justice.
If a state passes a law that makes Election Day voting more difficult, for example, the court would also need to consider whether the state also offers early or by-mail voting. The law also has an undefined grace window for when it becomes restrictive.
“A procedure that appears to work for 98% or more of voters to whom it applies — minority and nonminority alike — is unlikely to render a system unequally open,” Alito wrote.
That 2% margin caught Brown’s attention, along with many election law scholars across the country. Many elections are decided by much smaller margins.
“A little voter suppression is not OK,” Brown said.
Alito’s guidelines also only account for the restrictive impacts of procedures one by one, what scholars have quickly dubbed the “death by a thousand cuts” approach.
“If you get a half percent here and 1% here, you add it up, over let’s say three or four or five different election regimes, you can easily get to 3, 4 or 5%,” Su said.
The small numbers could easily decide an election, Su said.
With enough of the disenfranchised voters favoring Democrats, a 3% margin in select states would have easily changed the outcome of the 2020 presidential election.