Breaking and Analysis: Supreme Court on 6-3 Vote Rejects Voting Rights Act Section 2 Case in Brnovich Case— A Significant Weakening of Section 2

The Supreme Court, in a 6-3 decision, has severely weakened Section 2 of the Voting Rights Act as a tool to fight against laws that make it harder to register and vote. Rather than focus on disparate impact—whether a law leads to minority voters registering or voting in lower numbers—the court applies a much broader totality of the circumstances test with a huge thumb on the scale favoring the state and its restrictive law. If a law imposes just a “usual burden of voting,” and the burden on minorities is not too much, and the state can assert (but does not need to prove) a significant interest in preventing voter fraud or another interest, then the law can stand.

When you couple this opinion with the 2008 ruling in the Crawford case, upholding Indiana’s voter ID law against a Fourteenth Amendment equal protection challenge, the 2013 ruling in Shelby County killing off the preclearance provision of the Voting Rights Act for states with a history of discrimination, and today’s reading of Section 2, the conservative Supreme Court has taken away all the major available tools for going after voting restrictions. This at a time when some Republican states are passing new restrictive voting law.

The Court today also makes it harder to prove intentional racial discrimination in passing a voting rule, making it that much harder for DOJ to win in its suit against the new Georgia voting law.

I’ll more more analysis later. This is not a death blow for Section 2 claims, but it will make it much, much harder for such challenges to succeed.

Editor's Note: Hasen's analysis at ELB will be updated with more analysis of the final two decisions of the term on campaign finance disclosure and Section 2 of the Voting Rights Act