The U.S. Supreme Court reopened the door to race-based voter suppression with a "perverse" new ruling that "bludgeoned" the Voting Rights Act, according to one legal expert.
Justice Samuel Alito's majority opinion last week in Brnovich v. Democratic National Committee turned back the clock to 1982, undoing that year's congressional action to strengthen Section 2 of the landmark civil rights bill, and which came in response to a 1980 Supreme Court ruling that narrowly interpreted that section of the act, wrote Richard Hasen in a new column for Slate.
"This revision came despite fierce opposition from the Reagan administration and the president's point person on the issue, John Roberts, who now happens to be the chief justice of the Supreme Court," wrote Hasen, professor of law and political science at the University of California–Irvine School of Law. "The revision made clear that plaintiffs challenging voting rules did not have to prove that a jurisdiction acted with an intent to discriminate against minority voters."Instead, litigants challenging voting restrictions only needed to show that elections are not equally open to participation, and that members of a protected class had less opportunity than other voters to participate in the political process.
"Justice Alito's opinion for the Court in Brnovich, ignoring the text of the statute, its comparative focus on lessened opportunity for minority voters, and the history that showed Congress intended to alter the status quo and give new protections to minority voters, essentially offered a new and impossible test for plaintiffs to meet to show a Section 2 vote denial claim," Hasen wrote.
The conservative Alito specifically tells courts in his majority opinion to compare new voting restrictions being challenged to conditions as they existed in 1982, when Section 2 was strengthened -- and when registration was more difficult and nearly all voting occurred on Election Day.
"So imagine a state passes a law barring early voting on the Sunday before election day, because white Republican legislators know that reliably Democratic African-American voters often run 'souls to the polls' events to take church-going voters straight to vote after services," Hasen wrote. "While a challenge to such a rollback under Section 2 had a good chance of going forward before, how could it survive the 1982 benchmark now, when Sunday voting, and early voting as a whole, was rare?"
The Brnovich decision also puts the burden of proof in voting rights challenges on plaintiffs, who must show more than the "usual burdens of voting," and no longer requires states to provide evidence of fraud that new restrictions are purportedly intended to stop.
"States don't have to prove fraud at all," Hasen wrote. "It is a license to give tenuous excuses, excuses Republican legislatures are increasingly likely to give in the era of the 'big lie' that the 2020 election was stolen from Trump."
Hasen argued that the Supreme Court has clearly chosen sides with its conservative favorites against its progressive enemies, and intends to roll back civil rights protections "behind a veil of secrecy."
"It's been almost a week since the Supreme Court issued its most significant ruling on voting rights in nearly a decade, and each time I read Justice Samuel Alito's majority opinion in Brnovich v. Democratic National Committee, the angrier I become," Hasen wrote. "I'm angry not only about what the court did but also about how much of the public does not realize what a hit American democracy has taken."
