We Won’t Have Voting Rights Without Court Packing
The Supreme Court’s destruction of the Voting Rights Act proves that federal legislation is not enough to secure the right to vote.
On the final day of this year’s term, the Supreme Court delivered (another) crushing blow to the Voting Rights Act. In Brnovich v. Democratic National Committee, the Court ruled along partisan lines that two voting provisions in Arizona—each of which disproportionately impacts minority voters—are valid under Section 2 of the Voting Rights Act, which prohibits any voting law “which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race.”
The opinion, authored by arch-conservative Justice Samuel Alito, ostensibly leaves open claims under Section 2 by setting out a series of factors that courts can use to assess future cases. But realistically, the Court’s ruling will almost certainly function as a major shield to protect voter suppression laws for decades to come. By adopting a list of extremely broad factors—including the “state interest in preventing election fraud” and the “opportunities presented by a State’s entire system of voting”—the Court essentially imposed, in Justice Kagan’s words, “a set of extra-textual restrictions on Section 2—methods of counteracting the law Congress actually drafted.”
In response, many prominent Democrats are touting the importance of the For the People Act, the sweeping voting rights bill that Senate Republicans blocked last week. In a sense, this message is right on point—the only way to counteract the onslaught of voter suppression laws in Republican states is aggressive federal action. But the problem is that passing federal voting rights legislation alone almost certainly won’t solve the problem. To see why, you don’t have to look any further than Brnovich itself.
Brnovich does not reveal a gap in our federal voting rights protections—it reveals the Supreme Court’s relentless quest to eviscerate those protections. The problem with suggesting that federal legislation is the key to safeguarding voting rights is that the Voting Rights Act is federal voting rights legislation. If the Supreme Court was prepared to enforce the Voting Rights Act as Congress intended it to, the outlook for voting rights in this country would look enormously different. But the Court refuses to to that—and that’s a problem the For the People Act cannot fix.
Prior to 2013, when the Supreme Court delivered its first blow to voting rights in Shelby County v. Holder, the Voting Rights Act was a strong and useful tool for safeguarding the right to vote. In that case, the Court held that Section 5 of the Act—which identified certain states which could not change their voting laws without approval of the Department of Justice or a federal court—was unconstitutional. Had the Court reached a different result, President Biden likely could have blocked many of the voter suppression laws we’re seeing today. In fact, because Section 5 covered parts of Arizona, the provisions challenged in Brnovich may have been rendered unenforceable without ever reaching the Supreme Court.
Between Shelby County and Brnovich, the Supreme Court has essentially repealed the most crucial piece of voting rights legislation in our country’s history. Having witnessed this depressing outcome, it is hard to see how replacing the Voting Rights Act alone solves the problem. To be sure, the For the People Act goes far beyond the Voting Rights Act and is absolutely a necessary long-term solution that Congress should pass immediately—but unless we want to condemn the For the People Act to the same harrowing fate as the Voting Rights Act, we need a solution for the Supreme Court.
Fortunately, we know exactly what that solution is. Short of adding seats to the Court, there is simply no way to prevent Justice Alito, or any of the other five far-right justices, from writing the next devastating voting rights decision that eviscerates key provisions of the For the People Act, or any other voting rights bill Democrats manage to get through Congress. Unfortunately, instead of aggressively making the case for court expansion, President Biden and key Democrats are hiding behind Biden’s Court Reform Commission, which is quietly hosting academic panels and is hopelessly unequipped to help bring about the solution we all know is necessary.
Democrats, admittedly, are in a difficult spot. While Americans broadly favor the For the People Act, court packing is not nearly as popular. Touting a popular voting rights bill following a crushing defeat at the Supreme Court is a far safer political bet than calling for major structural changes to our judiciary. But we don’t have a choice. If Democrats are serious when they say “failure is not an option” on voting rights, they must to get behind court packing immediately.