I am a lawyer and former law professor who has always held the belief that our courts are democracy’s last, best, defense against authoritarianism, until now.
It’s not just that the Supreme Court’s recent 6-3 ruling in Brnovich v. Democratic National Committee continues disenfranchising minority voters by dismantling section 2 of the Voting Rights Act. Or, that the opinion squarely identifies the Supreme Court’s conservative majority as part of the Insurrection. It’s the collateral damage the opinion does to democracy.
Under Brnovich, it’s now the law of the land that states can legally throw out ballots cast in the wrong precincts and prohibit people other than family or caretakers from delivering ballots to polling places. The lower court (Ninth Circuit) found that these laws violated section 2 of the Voting Rights Act because: minority voters tend to move more often and are likely to turn up at the wrong precinct to vote, are more likely to need help bringing their ballots to their precinct, and often ask third parties for help in delivering their ballots.
When put together with the high court’s previous dismantling of the 1965 Voting Rights Act, it’s clear the conservatives on the court have joined the Republican attack on minority voting rights. Many minority voters don’t have picture IDs. In 2008 the Supreme Court upheld Indiana’s voter identification law requiring voters to show a picture ID. In 2013 it destroyed section 5 of the Voting Rights Act, which required states with a history of racial discrimination, like Georgia and Texas, to secure federal approval before adopting laws capable of burdening minority voters.
What’s shocking, however, is that Justice Alito, in writing for the majority, linked the ruling to Trump’s Big Lie of election fraud, which encouraged the January 6th Insurrection. Despite no evidence having ever been presented to substantiate the voter fraud lie he wrote: “one strong and legitimate state interest is the prevention of fraud.”
What is even more distressing is that in their zeal to join in the epidemic of state Republican voter suppression laws, the conservatives on the court were willing to disenfranchise an entire class of American voters. Class in America is distinguished by: wealth, education, income, and occupation. A chief characteristic of the American lower class is that it often does not have the kind of resources (health, wealth, and education) to ensure their ballots are delivered to their official polling sites, or for that matter, that they have the physical capacity to deliver them. (This is especially so for Arizona Navahos living in remote rural locations.)
Roughly 25 percent of U.S. households (82.9 million people) are members of America’s lower-class society. It’s important to understand that this property-less class of Americans is multi-racial, 55 percent being white. The Brnovich case, in concluding that because only a small number of people (“inconvenient for some”) were affected, the Arizona laws are constitutionally protected, was talking about this class of Americans. Ironically, it was only a small number of votes (10,000), fewer than Arizona threw out based on its out-of-precinct policy, that gave the state’s presidential votes to Joe Biden. Nevertheless, this kind of ruling is blind to the reality that the United States is made up of different classes of people with different realties and opportunities, all entitled to vote. Ultimately, Brnovich is a ruling that enfranchises middle- and upper-class voters, while disenfranchising voters of lesser means, many of whom are minorities.
This unfortunate takeover by partisan conservatives on the Supreme Court can only be counteracted by Congress passing voter protection laws (S1 and the John Lewis Voting Rights Act), now held hostage in the Senate by the filibuster. Whether senators Manchin and Sinema agree to filibuster reform remains to be seen. In the event they don’t, we have two alternatives: living with an Insurrection that moves democracy toward authoritarianism, through voter suppression, or electing enough senators in 2022 to give the Democrats more than a one vote (Vice President Harris) majority.