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Reversing the Supreme Court’s Latest Blow to Voting Rights

The Brennan Center testified before the House about the congressional action needed to restore the Voting Rights Act to full strength.

July 16, 2021

The follow­ing is adap­ted from oral testi­mony given Friday before the House Judi­ciary Commit­tee’s Subcom­mit­tee on the Consti­tu­tion, Civil Rights, and Civil Liber­ties about ways to address the effects of the Supreme Court’s decision in Brnovich v. Demo­cratic National Commit­tee.

We are witness­ing a wave of restrict­ive voting laws more signi­fic­ant than we have seen since the Voting Rights Act was signed into law. And while the Supreme Court’s 2013 Shelby County v. Holder  decision helped open the floodgates to efforts to roll back voting rights, the Brnovich decision weakened one of the tools we might other­wise use to stem the tide.

So, Congress must once again meet this moment, as it has in the past — in 1965 and in 1982 — to protect voters from discrim­in­a­tion. To provide truly compre­hens­ive protec­tion, Congress must restore the Voting Rights Act to its former glory and pass the For the People Act to set a new stand­ard for open elec­tions, free from discrim­in­a­tion.

I will start with a brief explan­a­tion of the harm the Brnovich decision does and then turn to poten­tial remed­ies.

The first mistake of the Brnovich major­ity is that it departs from decades of preced­ent and shifts the focus of its analysis away from what Congress inten­ded, which was an eval­u­ation of how voting rules inter­act with the effects of race discrim­in­a­tion. That is the purpose of the “total­ity of the circum­stances” test in Section 2. But the Court shifts its focus to a set of five so-called “guide­posts” for courts to consider moving forward.

In my writ­ten testi­mony, I explain in detail how each of these guide­posts will lead courts astray from the cause of identi­fy­ing and root­ing out discrim­in­a­tion in voting. The short version is that they direct courts to view with skep­ti­cism char­ac­ter­ist­ics that are in real­ity the hall­marks of modern-day vote suppres­sion.

The real­ity is that state legis­latures are not hack­ing, but slicing away at voting rights from every angle. They shave away access to mail voting; they cut back on in-person voting; they trim voters from the rolls through faulty purges. While any one slice might appear minor, the end result is death by a thou­sand cuts. This is how states, in the words of the Fourth Circuit Court of Appeals, target voters of color “with almost surgical preci­sion.”

But the major­ity in Brnovich seems will­ing to accept discrim­in­at­ory burdens so long as they do not deny the right to vote to too many. The major­ity doubts a restric­tion on one method of voting discrim­in­ates if there are other meth­ods avail­able. If a state’s voting laws are better than the status quo in 1982, when key amend­ments were made to the Voting Rights Act, the major­ity suggests it will be hard-pressed to find them discrim­in­at­ory.

What’s worse, the major­ity is far too quick to accept the excuse states give for these discrim­in­at­ory laws in each and every instance: fight­ing fraud. The Court accepts at face value the lie that currently threatens to under­mine our demo­cracy.

My colleagues and I make it our mission to defend the right to vote. This decision, follow­ing on Shelby County and others, leaves us facing unpre­ced­en­ted attacks with a blun­ted tool for fight­ing back. So what’s the solu­tion?

To remedy the harm done by Shelby County, Congress should restore preclear­ance by passing the John Lewis Voting Rights Advance­ment Act.

But now, to truly restore our power to push back on discrim­in­at­ory laws, Congress must strengthen Section 2.

First, Congress must ensure that the Supreme Court’s wrong­headed guide­posts won’t prevent the iden­ti­fic­a­tion of truly discrim­in­at­ory prac­tices. Congress could spell out the consid­er­a­tions that are relev­ant to determ­in­ing whether a rule produces discrim­in­at­ory results, making expli­cit the cent­ral role that histor­ical and current discrim­in­a­tion must play in courts’ analysis of Section 2 claims. The Senate Factors, which were created in 1982, helped guide the courts for decades. But Congress could also elab­or­ate upon them.

Second, Congress must make clear that the true threat to our demo­cracy is race discrim­in­a­tion, not wide­spread voter fraud. In order to right­size defer­ence to states, Congress could require courts to consider the tenu­ous­ness of the rela­tion­ship between the policy at issue and the stated goal. Or it could require states to prove that the rule in ques­tion actu­ally serves the goal.

Finally, it is crit­ical that Congress make expli­cit that there is no toler­able level of race discrim­in­a­tion.

With these goals in mind, Congress can remedy the harm done to the Voting Rights Act.

But, restor­ing the Voting Rights Act is not enough. Congress must also pass the For the People Act and create a new national stand­ard for voting. This will take some common tactics for restrict­ing voting off the table. We applaud the House for doing its part on this already.