Last week, two decisions by the Trumped-up SCOTUS bench set the U.S. on the path to perpetual GOP authoritarian rule.
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Trump might be gone, but he got to stack the United States Supreme Court before he was shown the door by the voters in 2020. Now, a hyperpartisan conservative court did exactly what Trump and the GOP hoped: further gutted the Voting Rights Act (VRA) to ensure that a minority party rules the rest of us in perpetuity. For good measure, they also threw in a decision that protects the ability of the extremely rich to influence our elections—without us ever finding out who those people are.
All in all, a very grim future for voting in America.
On the very last day of the 2020-2021 term, the Court issued two decisions related to elections. The first, Brnovich v. Democratic National Committee, upheld Arizona’s blatant attempt to decrease access to the ballot box. The other, Americans for Prosperity Foundation v. Bonta, threw out California’s law that would have required shadowy conservative dark money behemoths to disclose their donors.
The California case extends the reach of Citizens United, the 2010 Supreme Court decision that allowed corporations and political action committees to shovel unlimited money into elections. Justice Anthony Kennedy, who courteously stepped aside in 2018 so Trump could put Justice Brett Kavanaugh on the bench, wrote that independent spending by outside groups could never be corrupted and was therefore fine.
Of course, in the ensuing decade, what we’ve learned is that outside spending isn’t really “independent” and it is easily corruptible. The so-called super PACs that grew out of Citizens United blatantly cooperate with the exact campaigns from whom they are supposed to maintain independence.
The creation of those super PACs also ushered in an era of dark money—vast untraceable sums pumped into elections by the super-rich. Citizens United required some minimal levels of donor disclosure, requiring super PACs to reveal who their donors were. But, it allowed those donors to take money from dark money groups who don’t have to disclose their funding.
There’s no question that this massive influx of spending has deformed elections in the United States. In competitive elections, most of the money spent is now dark money, Additionally, most of that money comes from relatively few donors. In the 2018 election, 78 percent of super PAC spending came from just 100 donors.
It was against this backdrop that California sought to shine a light on dark money by passing a law that required nonprofits to give the state a list of donors who gave more than $5,000 per year or whose donation represented more than 2 percent of the organization’s total donations. Americans for Prosperity, a conservative juggernaut built by the billionaire Koch brothers, sued, arguing that having to disclose donors would open them up to harassment. Chief Justice John Roberts and the Court’s five other conservatives eagerly agreed with this assertion and decided there’s a First Amendment right to keep those things secret.
Justice Sonia Sotomayor, the best dissenter working right now, wrote for the Court’s liberal minority, and that dissent gives us a look at why the Court’s decision was ahistorical and absurd. First, she notes that in other instances, the Court requires you to plead and prove you will actually be threatened, harassed, or otherwise harmed by this type of law. Not here, though. All AFP had to do was “vaguely wav[e] toward” a possible harm and they won. More importantly, though, she highlights that the Court’s decision puts a target on future reporting and disclosure requirements.
Prior to this decision, the Court generally upheld disclosure requirements because it’s an important part of democracy that we know who is influencing our elections. But conservative mega-donors are reliant upon us not knowing that, on being able to manipulate outcomes without consequences.
Ultimately, the AFP case isn’t just about AFP or California. It’s about the way the conservative majority opens the door to challenge other disclosure requirements. It may even allow for a challenge to campaign contribution caps—laws that restrict how much donors may give to campaigns directly. It doesn’t just solidify the fact that conservatives want big dark money to run our elections. It solidifies the fact that conservatives want big dark money to run our elections in secret.
In the Arizona voting-rights case, the Democratic National Committee sued the state over two voting-related provisions that were clearly designed to restrict the voting rights of minorities. One provision bans what voter-suppression enthusiasts menacingly call “ballot harvesting,” but is really just someone bringing your absentee ballot to the polls for you. The Arizona law prohibits anyone who isn’t a relative or a caregiver from doing that. It’s designed to stop community groups from picking up ballots from people who aren’t easily able to return them.
That third-party collection of ballots has proven especially valuable and necessary to people who lack transportation or reliable access to postal services. In Arizona, those problems are especially pernicious for Native Americans and Hispanic people. Only 18 percent of Native Americans voters in the state have mail service at home, for example. Similarly, as the lower courts in this case found, Latino voters are “more likely to work multiple jobs, less likely own a car, and more likely to lack reliable access to transportation.” These circumstances make having third-party collection of ballots a necessity, not a luxury.
Arizona’s other law also disproportionately affects minority voters, and that’s exactly as intended. Called the out-of-precinct rule, it mandates that if someone casts a vote in the wrong polling place, it has to be thrown out, even if it is for a statewide race where the location of the precinct wouldn’t matter.
The lower court in this case found—and nobody disputes—that Latino, Black, and Native American people have their ballots rejected for being out of precinct at far higher rates than white people. That’s because Arizona’s conservative politicians move poll locations around more frequently when those poll locations are in communities of color, leading to understandable confusion about where to vote. Minority and poorer voters are also likely to move more often, possibly changing precincts as they go. So, a law that says the state gets to entirely throw out your ballot if you cast it in the wrong place is bound to affect minorities more than white people.
None of that matters, said Justice Samuel Alito, writing for the conservative majority, blithely declaring that “voting takes time and, for almost everyone, some travel, even if only to a nearby mailbox.” That, of course, ignores all the evidence that many Native Americans in Arizona have no mailbox to travel to.
Alito was similarly disinterested in the fact that the rejection of out-of-precinct ballots disproportionately affects voters of color. He acknowledges that roughly 1 percent each of Hispanic, Black, and Native voters had ballots rejected under the law, while white voters had a rejection rate of about 0.5 percent. Instead of focusing on the fact such a rejection is at double the rate, he falls back on saying that the law works 98 percent of the time, so it’s no big deal.
This callous indifference to the effect of voting restrictions on people of color ends up obliterating a key civil rights concept in voting—the disparate impact test. Section 2, a tiny but mighty portion of the VRA, prohibits states from enacting voting laws that discriminate on the basis of race, color, or membership in certain minority groups. One of the ways in which it is determined whether that discrimination exists is if the law has a disparate impact—a disproportionate negative effect—on voters of color.
As Justice Kagan noted in her dissent, that language in Section 2 is “as broad as broad can be” and “applies to any policy that ‘results in’ disparate voting opportunities for minority citizens. Plaintiffs don’t need to show there was a bad motive in passing the law. They don’t need to meet some arbitrary threshold of a number of voters disenfranchised by the law. If it disproportionately harms minority voters, it’s out.
But not any longer. The majority created an imaginary impact requirement and then declared that the Arizona law didn’t meet it. Alito also made sure to stack the specter of “voter fraud” up against any possible negative effects on the voting rights of communities of color, even though voter fraud is just a myth used to justify voter suppression.
The majority’s decision guts Section 2 and makes it very hard to win a lawsuit against a state that passes racist laws to thwart voter participation by people of color. A state can just say it is concerned about voter fraud and then pass whatever measures it likes.
There’s really no question this decision opens the floodgates to those types of laws. Witness what happened eight years ago in Shelby County v. Holder. There, Chief Justice John Roberts, writing for the conservative majority, killed the “preclearance” requirement for certain jurisdictions with a lengthy history of violations of the voting rights of Black people. Under pre-clearance, jurisdictions had to submit any proposed new elections laws to the Department of Justice and have them approved before they could take effect.
John Roberts used this case to declare that racism was over and the law was no longer needed. The effects of the Shelby decision were immediate and far-reaching. Texas quickly declared it was reviving its voter-ID law that had previously been blocked. Over the next five years, states previously covered by the pre-clearance requirement closed over 1,600 polling places. Alabama passed a voter-ID requirement and Georgia purged over a half-million voters from the rolls.
Shelby took away the right of the DOJ to stop racist voter-suppression laws before they got enacted. What was left intact after Shelby—until last week—was the right of private entities like voting-rights groups to sue over those racist laws once they were passed. Now, with the Brnovich decision, that’s essentially gone too, as Alito’s decision shows that the Court doesn’t really care if voting laws negatively burden minority voters. Put another way, it makes it much easier for states to pass suppressive laws and much harder for challengers to get them overturned. Challengers will have to prove racist intentions—essentially, that the state overtly declared it was passing the law for discriminatory purposes—rather than just racist effects.
This result was the culmination of a decades-long project for Roberts, dating back to when he worked in the Reagan White House. Back then, he wrote over 25 memos about Section 2, including talking points pushing back on the “effects test”—measuring whether the law is discriminatory based on whether it has negative effects for minority voters. He didn’t get a chance to impose that view in Shelby, but Alito did it for him in this most recent case.
In her dissent, Justice Elena Kagan, brought the heat: “What is tragic here is that 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.” She’s absolutely right. We shouldn’t need the VRA, because we shouldn’t need to continually guard against white supremacists who want to run everything even if they don’t have the votes to do so.
Supreme Court decisions aren’t usually recommended reading, but Kagan’s entire dissent is a masterpiece that should be taught in civics classes and law schools for the rest of time. It’s a detailed recollection of how hard and how long so many people fought to secure the right to vote and it’s a requiem for the ultimate loss, a scant 50-plus years later, of that right.
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