Supreme Court Goes To War With Democracy Again, Wins! (That Means You Lose)
Welp, we are finally done with the 2021 SCOTUS season. And they did NOT save the best for last.
At the end of last week, I was alllllllmost ready to say this term, our first with a 6-3
fascist conservative majority, hadn't been that bad, all things considered. And then I remembered which cases we were still waiting on.
Today, in a rare July opinion day, the Supreme Court released its opinions in Brnovich v. Democratic National Committee and Americans for Prosperity v. Bonta. And they are, well, not great.
In a pair of 6-3 decisions, today our majority-fascist Supreme Court reminded us of its true calling: not to be an independent, impartial, non-partisan judicial body, but to be the judicial branch of the Republican Party.
The reality is that when the stakes for our democracy are the highest -- when the cases involve the law of democrac… https://t.co/NBzvpmoNpU— Leah Litman (@Leah Litman) 1625149054.0
Brnovich v. DNC
Republicans the world over hate it when POC and poor people vote. So, rather than try to include things in their platform that might appeal to these ordinary Americans, they have spent the last few decades doing whatever they can to disenfranchise people who don't generally vote Republican.
In 2016, the Republican Arizona legislature and Governor Doug Ducey decided to enact new voter suppression laws, aimed directly at the state's Latino and Native populations. The new restrictions included bans on helping people turn in their absentee votes and out-of-precinct voting.
It should not surprise any of our readers to learn that these two things disproportionately burden Arizona's rural Black, Hispanic, and Native American communities. Previously, nonprofit organizations would do things like collect ballots at nursing homes, on rural Indian reservations, and for people who don't have traditional mailing addresses. Now, helping people vote is a felony. Before this fuckery was passed, voters could also cast provisional ballots for statewide offices if they went to the wrong precinct on Election Day. Now that, too, is banned.
These laws disproportionately hurt Black and brown people in Arizona, who rely on things like ballot collecting. But we now have a Supreme Court that doesn't believe race discrimination exists, even when it literally has the proof presented to it. It thinks disenfranchising people of color is totally fine.
All of us not-terrible people watching SCOTUSblog this morning knew, as soon as we saw Samuel Alito was delivering the opinion, that it was going to be bad. The question was just how bad it was going to be.
The answer is "pretty bad."
In addition to stopping outright race discrimination, the Voting Rights Act also blocks some facially neutral laws that have a disparate impact on voters of a certain race. No more, if this Court has its say.
Justice "Own the Libs" Alito writes for the majority that it's really NBD if voting restrictions target Black and brown people. And, because the Court's conservatives think that, overall, it's pretty easy to vote in Arizona, they just don't particularly care if the state wants to make things harder for POC.
Even neutral regulations may well result in disparities in rates of voting and noncompliance with voting rules. The mere fact that there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote. And small disparities should not be artificially magnified.
To Alito and the rest of the court's "conservatives," who have no idea what it's like to live and vote on an Indian reservation in rural Arizona, voter suppression laws designed to disenfranchise people of color merely make voting "inconvenient for some."
Don't be fooled: the Court's end goal is to destroy all federal voting rights protections and let voter suppression do its racist thing. And it only thinly veiled what it was doing, going so far as to use the same types of reasoning actually used by southern states disenfranchising Black people during Jim Crow.
They're *literally* using the same rationales used post-Reconstruction to protect "the purity of the ballot". Regar… https://t.co/ROsh3a34wj— Cliff Albright (@Cliff Albright) 1625156012.0
If you're only going to read one thing about this case today, don't let it be the majority opinion or even this post; let it be Elena Kagan's dissent.
Justice Kagan takes the time to remind us of the law we're talking about: the Voting Rights Act. As she writes, "[i]f a single statute represents the best [and worst] of America, it is the Voting Rights Act." It represents the best of us because "[i]t marries two great ideals: democracy and racial equality. And it dedicates our country to carrying them out." And it represents the worst of us "[b]ecause it was—and remains—so necessary." The majority opinion shows us that she is right — and most of our highest court is on the side of the worst.
Like Kagan writes,
Today, the Court undermines Section 2 [of the Voting Rights Act] and the right it provides. The majority fears that the statute Congress wrote is too "radical"—that it will invalidate too many state voting laws. So the majority writes its own set of rules, limiting Section 2 from multiple directions. Wherever it can, the majority gives a cramped reading to broad language. And then it uses that reading to uphold two election laws from Arizona that discriminate against minority voters. I could say—and will in the following pages—that this is not how the Court is supposed to interpret and apply statutes. But that ordinary critique woefully undersells the problem. What is tragic here is that the Court has (yet again) rewritten—in order to weaken—a statute that stands as a monument to America's greatness, and protects against its basest impulses. What is tragic is that the Court has damaged a statute designed to bring about "the end of discrimination in voting."
AFP v. Bonta
AFP v. Bonta is about an entirely different issue, but it, too has the potential to help bring our democracy crumbling to the ground. Here, Koch-funded Americans for Prosperity Foundation challenged a California law that requires nonprofits to disclose certain major donors to the state. The donor lists aren't public, just reported to the state. This, says the Supreme Court, violates the First Amendment's right to free assembly.
And you know what? I don't necessarily disagree with the ultimate outcome here. As y'all know, I'm more of a free speech absolutist than most, and I don't love the idea of the government creating lists of who donates to which nonprofits. As much as I, too, would love to know who funds The Federalist, I also don't want the government to start creating lists of, for example, who donates to the ACLU.
My problem here isn't with the outcome of the case; it's with the language that gets us there. For the majority, Chief Voter Suppression Expert and Shelby County-drafter John Roberts goes after "disclosure regimes" generally, clearly laying a path to later invalidate all manner of campaign finance laws. The key point of this decision, as noted by election law expert Rick Hasen, "is that it will be much harder to sustain campaign finance disclosure laws going forward."
Because Citizens United wasn't bad enough.
But, hey, at least we have #BestJustice Sonia Sotomayor to tear the majority a new one. Like Sotomayor writes in her dissent, Roberts's opinion is a map on how to invalidate campaign finance laws — and makes it easier for just about anyone to challenge them.
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." It does not matter if not a single individual risks experiencing a single reprisal from disclosure, or if the vast majority of those affected would happily comply. That is all irrelevant to the Court's determination that California's Schedule B requirement is facially unconstitutional. Neither precedent nor common sense supports such a result.
Who needs democracy, anyway?
If Dems needed any additional reasons to enact the For the People Act and John Lewis Voting Rights Act, may I present to you this duo of cases?
And, truly, this is only the beginning. Unless Dems magically grow spines and expand the Court, we are most likely going to be stuck with a majority-fascist Supreme Court for decades to come. This was the first year of their 6-3 majority and they are already laying the groundwork to (further) demolish our democracy.
Shelby County is the Plessy v. Ferguson of our time. Our Supreme Court went out of its way to hurt Black and brown people. It is yet another stain on American history that we should all be deeply ashamed of.
And, as evidenced by today's decisions, Shelby County was just the beginning.
Unless something pretty damn major happens, we are fucked. By the time this Court and the current Republican Party are through, we will be lucky if we have a Voting Rights Act left to use as toilet paper.
Sorry, I don't have a good note to end on, here. It's all bad. And going to get worse.
Here's my cat, Dany. She's cute.
[Brnovich v. DNC / AFP v. Bonta]
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