Last week, the Supreme Court concluded its most recent Term by handing down two cases in which the Justices divided along ideological lines. In Americans for Prosperity Foundation (APF) v. Bonta, Chief Justice Roberts and his fellow Republican appointees invalidated a California law requiring charitable organizations to turn over their donor lists, citing the organizations’ and donors’ First Amendment interest in anonymity. Justice Sotomayor dissented for herself and the other Democratic appointees.
It requires no great leap to envision APF’s application to campaign finance disclosure requirements in a future case and thus the elimination of the principal regulatory option that the Court’s Republican majority ostensibly left open in its 2010 ruling in Citizens United v. FEC. There, Justice Kennedy insisted for the majority that “disclosure requirements” remained viable. After APF, that reassurance could ring hollow.
Still, if APF divided the Court on familiar ideological grounds, its larger political valence is somewhat murky. Liberal and progressive groups, not just conservative ones, frequently seek shelter from public scrutiny for their members and donors. For example, fearing surveillance based on Islamophobia, the Council on Islamic-American Relations filed an amicus brief urging the Court to strike down the California law. So did a coalition of groups including the ACLU and the NAACP LDEF.
There was less uncertainty about the politics of the other blockbuster case handed down last Thursday. In Brnovich v. Democratic National Committee, the Court’s six Republican appointees, in an opinion authored by Justice Alito, sided with the Republican Attorney General of Arizona, who defended two state laws challenged under the Voting Rights Act (VRA). One of the laws restricted who could collect mail-in ballots; the other invalidated votes mistakenly cast in the wrong district, even with respect to statewide races and other elections for which the mistake is irrelevant. Over the objections of Justice Kagan and her fellow Democratic appointees in dissent, Justice Alito said that neither Arizona law had a sufficiently pronounced disparate impact on minority voters to cast doubt on the state’s legitimate interests.
Ominously, Justice Alito invoked the familiar Republican pretext of combating voter fraud as one justification for the collection limitation. What about the fact that there is no evidence of voter fraud? No evidence? No problem, said the majority, because “a State may take action to prevent election fraud without waiting for it to occur and be detected within its own borders.”
Commentators are already warning that the ruling in Brnovich will make it harder for the Justice Department to invoke the VRA against Georgia and other states in which Republican-dominated legislatures have been enacting legislation aimed at ensuring that Democrats have difficulty voting and that the people responsible for counting votes are reliable Republican apparatchiks. Whether the ruling suffices to persuade Senators Manchin and Sinema to support new legislation protecting voting rights remains to be seen.
Purpose or Effect
In the meantime, the legal analysis in Brnovich warrants further scrutiny. Part of the dispute in the case centered around the role that discriminatory effect plays under the VRA. The key statutory language forbids the application of laws “in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” Pointing to the legislative history, the dissenters argued that a law “results in” race-based abridgment of voting rights where it has a disparate impact on minority voters.
Pointing to the Court’s own construction of the Reconstruction Amendments, the majority answered that while such a disparate impact may be relevant to the “totality of circumstances,” the ultimate questions are “whether a State makes voting ‘equally open’ to all and gives everyone an equal ‘opportunity’ to vote.” Concluding that Arizona’s laws were not so burdensome on minority voters relative to the state’s interest, the majority concluded that the state had satisfied those obligations.
The majority is almost surely wrong about the legal standard. Congress and the Court went back and forth over not only the VRA but also other civil rights legislation, with the Court repeatedly construing statutes as forbidding nothing but purposeful discrimination only for Congress to clarify that it also meant the law to require states, localities, and where applicable, private actors, to offer a very good justification for race-neutral rules and policies that have a discriminatory effect on racial minorities and other disadvantaged groups.
Justice Alito responds for the majority that the “models” in these other civil rights statutes “are unhelpful in [VRA] cases,” because, he says, following them “would have the effect of invalidating a great many neutral voting regulations with long pedigrees that are reasonable means of pursuing legitimate interests.” Yet “reasonable” and “legitimate” are code words for the most minimal form of judicial scrutiny. Congress, in safeguarding the fundamental right to vote, should be presumed to have demanded more, as Justice Kagan’s dissent shows it in fact did.
Race, Politics, or Both?
Despite applying the wrong test, the Brnovich majority’s conclusions with respect to disparate impact were not necessarily wrong. For instance, there was evidence that the rate of ballots cast in the wrong district by minority voters was twice that for non-minority voters, but even for minority voters, that rate was low (about one percent). A reasonable opinion might have been written allowing that the VRA imposes a heavy justificatory burden whenever a state law has a disparate racial impact but finding the impact here de minimis.
The majority’s conclusions might also be justified with respect to the plaintiffs’ allegations of intentional discrimination. Pointing to the chain of events leading up to the adoption of the two Arizona measures, the plaintiffs contended that suppressing the votes of racial minorities motivated the legislature. The trial judge, however, found otherwise, and as Justice Alito correctly wrote for the majority, appeals courts, including the Supreme Court, owe deference to a trial judge’s findings of fact. Had Justice Alito stopped there, the finding of no intentional discrimination might have been subject to criticism but would have been mostly unremarkable.
Yet as with the disparate impact analysis, so too with respect to intentional discrimination, Justice Alito went further in a way that is troubling. He wrote: “The spark for the debate over mail-in voting may well have been provided by one [state] Senator’s enflamed partisanship, but partisan motives are not the same as racial motives.” For that proposition, he cited the Court’s 2017 opinion in Cooper v. Harris. He did not mention that he dissented in that case, which in fact found that there was illicit racial motivation and did not involve voting restrictions but the drawing of district lines, where legitimate political motives may be difficult to disentangle from illicit racial ones.
Put differently, if an impermissible racial gerrymander may be difficult to distinguish from a permissible political gerrymander, that’s because a politically motivated legislature could have drawn district lines by looking at records of how individuals vote, which happen to be correlated with race. By contrast, if a law disadvantages Democrats because it disadvantages African Americans or some other racial minority group that tends to support Democrats, that is racial discrimination, plain and simple. The fact that lawmakers’ ultimate purpose is political does not excuse their reliance on race as a proxy, any more than a defendant restaurant owner could defend the refusal to hire minority waiters on the ground that the owner’s ultimate purpose is to make money by catering to the wishes of customers who happen to be racists.
To be clear, it’s possible that the Arizona legislature was not motivated by even partisan aims. But Justice Alito’s suggestion that if it was that might excuse or explain the deliberate adoption of laws that disparately impact racial minority voters should be roundly rejected.
The bottom line in Brnovich may be correct. Even if not, the narrow holding of the case will not much affect electoral outcomes in Arizona or elsewhere. But the legal analysis and the Court’s broad acceptance of Republican talking points about voter fraud portend ill for the future of American democracy.
