Undoing the Voting Rights Act

In a 2021 case from Arizona, Justice Samuel A. Alito, Jr., issued an opinion of the US Supreme Court—calling it a "fresh look"—that sabotages Section 2 of the Voting Rights Act of 1965. In effect, he rewrites the amendments Congress adopted in 1982 and annuls their purpose of making it easier, not harder, to strike down voter suppression laws resulting in racial discrimination. The Court's decision will likely unleash a new round of widespread discrimination in voting across the nation and continues its section-by-section destruction of the law that has been the nation's most effective force for expanding democracy over the last 150 years.

The Court decision reveals again that on matters of race and racism, when it suits their agenda, Justice Alito and the current Court's majority will abandon their own "textualist" judicial philosophy of adhering to the text of a law. Those studying this opinion will find it difficult to believe that it was written by the judge who, on and off the bench for years, has declared, "Statutes mean something. And the role of a judge is to interpret and apply the laws as they are written. . . . That's what we mean when we say that we have the rule of law and not the rule of men."

In his majority opinion, written for the six members who comprise the Court's conservative wing on controversies of race, Justice Alito upholds Arizona law that invalidates a voter's entire ballot if it is cast in the wrong precinct for any reason (even if the mistake is the fault of a voting official), and prohibits civic groups from collecting sealed ballots. Alito's opinion damages the ongoing protection of voting rights across the nation. It creates a list of standards that federal courts should consider when applying Congress's 1982 amendments to the Voting Rights Act's Section 2—the section that permits federal lawsuits challenging voting discrimination across the country. These Congressional amendments overturned a 1980 Supreme Court opinion that a law violated the Act only if intent to discriminate could be proven. Congress's amendments provided that, after considering a "totality of circumstances," a federal court need only find that a law or practice has a discriminatory result.

The US Senate's report explaining the Act's 1982 changes stated:

The courts are to look at the totality of the circumstances in order to determine whether the result of the challenged practice is that the political processes are equally open; that is, whether members of a protected class have the same opportunity as others to participate in the electoral process and to elect candidates of their choice. The courts are to conduct this analysis on the basis of a variety of objective factors concerning the impact of the challenged practice and the social and political context in which it occurs. The motivation behind the challenged practice or method is not relevant to the determination.¹

Justice Alito's opinion lays out five "guideposts," his own version of the "objective factors . . . and the social and political context" that lower courts should consider. He describes these new standards as the Court's "logical" definition of what Congress meant when they instructed federal courts to consider a "totality of circumstances" in Section 2 cases:²

1. "size of the burden imposed" on the protected group;
2.  "size of the disparity in a rule's impact on members of different racial or ethnic groups";
3. "degree to which a voting rule departs from what was standard practice" when the Congress added the term "totality of circumstances" to the law in 1982;
4. "opportunities provided by a State's entire system of voting when assessing the burden imposed by a challenged provision";
5. "strength of the state interests served by a challenged voting rule."

These standards are not found in any official reports of the US House or Senate issued in 1982 as the Congress debated and renewed the Act with amendments. None are mentioned as recommended standards in the extensive testimony during Congressional hearings in both Houses.³ They are merely "logical" products of Justice Alito's thinking after conferring with his law clerks and perhaps some of the Court's other conservative members.

The most striking feature of Alito's "guideposts" is that they all offer ways to make it more difficult for a person to prove a voting rights infringement.