After a term characterized by many unusual alignments among justices and a tendency to avoid sweeping decisions, the conservative majority of the Supreme Court bared its teeth in the final two cases, both decided by 6-3 margins and involving politically consequential subjects. One exhibited a tolerant attitude toward state voting restrictions just as they are beginning to cascade out of Republican-controlled legislatures. And the other may represent a serious constitutional bar to future campaign-finance-reform initiatives.
Brnovich v. DNC was this year’s big voting-rights case, involving two Arizona laws allegedly aimed at maintaining “election integrity.” With Justice Samuel Alito writing for the conservatives, the decision could have done more damage to Section 2 of the Voting Rights Act of 1965 than it did; some voting-rights opponents think the whole law, or at least its past interpretation, should be thrown out for violating the 15th Amendment by authorizing discrimination in favor of minority voters. Instead, Alito simply made it clear that the Supreme Court will henceforth place a light burden on states in interpreting Section 2 — which authorizes federal or individual lawsuits against states or localities that allegedly “dilute” or “deny” minority voting opportunities — at a time when the law is the sole weapon the federal government has left in fighting voter suppression. Alito repeatedly pointed to ways Arizona voters disadvantaged by the state restrictions (aimed at out-of-precinct voting and third-party collection of sealed and signed mail ballots) could have circumvented them via other voting options, and he approved the state’s anti-fraud rationalizations without a lot of scrutiny. The Brnovitch majority is the friendly cop ready to look the other way.
As Justice Elena Kagan noted in her strongly worded dissent in Brnovich, the majority is subverting the vigilance intended by the authors of the VRA, not just in its original form but as amended in 1982 to make it clear discriminatory effects were banned even without a showing of discriminatory intent:
The Voting Rights Act was meant to replace state and local election rules that needlessly make voting harder for members of one race than for others. The text of the Act perfectly reflects that objective. The “democratic” principle it upholds is not one of States’ rights as against federal courts. The democratic principle it upholds is the right of every American, of every race, to have equal access to the ballot box. The majority today undermines that principle as it refuses to apply the terms of the statute. By declaring some racially discriminatory burdens inconsequential, and by refusing to subject asserted state interests to serious means-end scrutiny, the majority enables voting discrimination.
Kagan, of course, is citing a principle central not only to the VRA, but to the current Democratic voting-rights bills Senate Republicans are busily killing with filibusters: setting national standards for voting rights in federal elections. While Brnovich isn’t as immediately consequential as its predecessor, the 2013 decision in Shelby County v. Holder (which all but eliminated the VRA’s federal “pre-clearance” requirement for changes to voting and election law in jurisdictions with a history of discrimination), it does continue the cheerful erosion of the VRA by a conservative majority inclined to green-light state restrictions if they are not drafted stupidly or justified by blatant racism. Its significance will become clearer in the future Section 2 litigation that Merrick Garland’s Justice Department has already begun.
The author of Shelby County, Chief Justice John Roberts, wrote the majority opinion in the donor-disclosure case, Americans For Prosperity v. Bonta, upholding a challenge to a California law requiring disclosure of donors by nonprofit enterprises. The ruling showed that conservative’s concern for state prerogatives is conditional. California’s apparently sloppy maintenance of a pledge to keep donor information private could have provided the grounds for a narrow decision. But instead, Roberts found the law “facially unconstitutional,” exerting a chilling effect on the First Amendment rights of donors. As in Brnovich, the major effect could be collateral, as NPR’s Nina Totenberg observes:
[Most] important could be the effect on federal and state laws that require public disclosure of the names of campaign contributors. In the political context, the Supreme Court has long ruled that such disclosure is constitutional because it serves the important public interest of accountability by disclosing who has skin in the game of influencing government policy. Indeed, public disclosure is perhaps the only remaining check on political contributions, and some political contributors would like to see it eliminated, too. In fact, so too would some members of the Supreme Court’s conservative wing.
Justice Sonia Sotomayor suggested in her dissent that the implications could go even deeper: “Today’s analysis marks reporting and disclosure requirements with a bull’s-eye. Regulated entities who wish to avoid their obligations can do so by vaguely waving toward First Amendment ‘privacy concerns.’”
Beyond the specific holdings in these two cases, they could show the kind of conservative boldness that liberals fear when the Court turns to potential landmark decisions on reproductive rights, the Second Amendment, and possibly affirmative action when it reconvenes in the fall.
