Thursday, July 01, 2021

What Was/Is at Stake in Brnovich?

 by Michael C. Dorf

I don't usually post "hot takes" on Supreme Court opinions, preferring to spend at least several hours and often several days to digest them before blogging about them. I'll depart from that practice today, aware of the risk that I'll therefore make more mistakes than usual. So herewith are my hot takes on Brnovich v. DNC:

(1) The not-just-ideological-but-partisan division in this case (and in the other case handed down today, Americans for Prosperity Foundation v. Bonta) will substantially undercut the narrative that had been emerging of a Court that was taking pains to forge cross-ideological alliances. For example, this NY Times article a week and a half ago was headlined "The Supreme Court’s Newest Justices Produce Some Unexpected Results." The sub-headline was "In the term so far, including two major decisions on Thursday, the court’s expanded conservative majority is fractured and its liberals are often on the winning side." But Adam Liptak, who wrote the piece, wisely hedged (and was nice enough to quote me). The story concluded: 

That may change in the next two weeks, as the court issues decisions in the remaining 15 cases of this term. In any event, said Michael C. Dorf, a law professor at Cornell, this term’s coalitions may be fragile.

“More than in most recent terms, Chief Justice Roberts was able to present a credible picture of a nonpartisan court, with Justices Breyer, Kagan, Kavanaugh and Barrett in particular seeming to go out of their way to forge centrist alliances,” Professor Dorf said. “However, the justices appear to have reached a truce rather than a lasting peace. With high-profile abortion and gun control cases already on the docket for next term, ideological disagreements will likely re-emerge sooner rather than later.”

I ought to have mentioned voting rights too. And I was too optimistic in suggesting that the era of good feelings would last into next Term. It's over already.

(2) That said, Brnovich might be dismissed as small potatoes. After all, even the Biden Justice Department argued (in a letter that Justice Alito's majority opinion cites in footnote 8 on page 13 of the majority opinion) that the two challenged Arizona voting laws--one that limits who can collect a mail-in ballot and the other invalidating an election-day ballot cast in the wrong district--did not violate Section 2 of the Voting Rights Act. The fact that all of the Democratic appointees disagreed shows that the administration's view is controversial, but even if one thinks that the administration and the Brnovich majority are wrong about the outcome, minority and Democratic voters will still be able to win elections in Arizona notwithstanding these restrictions.

(3) Yet seeing the case as only about the particular Arizona rules takes a particular kind of myopia. Justice Alito says that Justice Kagan's dissent goes on at length about issues the Court doesn't decide. He also says that the Court declines to adopt a test for a VRA Sec. 2 violation, but it's hard to take that claim seriously. After all, Justice Alito and the majority specifically reject disparate impact as such, preferring instead what he calls a totality-of-the-circumstances test, which he equates--at least for purposes of this case--with a five-factor test. Even if the majority's test is more faithful to the VRA than the dissent's, the notion that it's not a test, that the Court has not decided much, seems plainly wrong.

(4) Indeed, it's impossible to miss what the majority is really after--a construction of the VRA that will allow it in future cases to reject challenges to practices that do have a more substantial disparate impact. Can you guess what those might involve? You don't have to, because Justice Alito and the other Republican appointees lay it out for us in critiquing Justice Kagan's test, which, he says:

would have the potential to invalidate just about any voting rule a State adopts. Take the example of a State’s interest in preventing voting fraud. Even if a State could point to a history of serious voting fraud within its own borders, the dissent would apparently strike down a rule designed to prevent fraud unless the State could demonstrate an inability to combat voting fraud in any other way, such as by hiring more investigators and prosecutors, prioritizing voting fraud investigations, and heightening criminal penalties. Nothing about equal openness and equal opportunity dictates such a high bar for States to pursue their legitimate interests.

So there it is: laws having a clear and substantial disparate impact on minority (read Democratic) voters can be justified by the state's interest in combating voter fraud, even if there are alternative means available that do not have the disparate impact. Sure, Justice Alito qualifies the statement with the "Even if . . ." language, but we know which judges will be making the judgment whether a state has pointed to "a history of serious voting fraud."

(5) Justice Kagan's dissent is most powerful in painting the majority opinion as tone-deaf in the same way as the Court's disastrous opinion in Shelby County v. Holder gutting Sections 4 and 5 of the VRA. Here, as there, the Court treats race discrimination in voting as a thing of the past. But whereas the Shelby County Court might have invoked the excuse that it thought things had improved, that excuse is not available now, given how so many states reacted to the freedom that Shelby County gave them to dilute the strength of minority voters.

Bottom Line: The particular outcome in Arizona is not especially important, but at a time when we will likely need the federal courts to stand up to the Republican Party's nationwide effort to undercut democracy, Brnovich shows that the Republican-packed Supreme Court is more likely to abet that effort.