SCOTUS Watch: The Court Gives New Urgency To Passing Voting Rights Legislation

Above: Arizona Attorney General Mark Brnovich’s name will live in infamy on this Supreme Court decision (see the Kagan dissent). Remember, he wants to run for U.S. Senate next year. He should never hold a political office ever again.

The final two decisions of the U.S. Supreme Court’s term today gives new urgency to passing voting rights legislation. i.e., the For The People Act and the John Lewis Voting Rights Advancement Act. Justice Alito weakened the landmark Voting Rights Act of 1965, and Chief Justice Roberts made an absolutist defense of “dark money” by nonprofit organizations. Call your Senators today and demand that they reform the Senate filibuster rule in order to pass much needed voting rights legislation in the face of GQP Jim Crow 2.0 voter suppression laws, the worst assault on voting rights since the end of the Reconstruction era.

There has been much discussion about the “odd” lineups in the court’s decisions this year that do not follow the expected ideological makeup of the court. This may be true for criminal procedure and patent court cases, but on the most fundamental issue of democracy, “the sacred right to vote” as John Lewis would say, the ideological makeup of the court is plainly evident.

Remember, Justices Roberts and Alito were appointed by George W. Bush, and Justices Gorsuch, Kavanagh and Barrett were appointed by Donald Trump, two presidents who lost the popular vote for president and would not have been president but for the last remaining vestige of the slavery provisions in the U.S. Constitution, the Electoral College. Today’s opinions would not have been possible but for this antidemocratic anachronism in the U.S. Constitution. “[I]n Order to form a more perfect Union,” the Electoral College must go.

The first opinion today was in Brnovich v. Democratic National Committee, a partisan 6-3 decision. The majority opinion is by Justice Alito, joined by the other 5 Republican appointees on the Court, Justices Roberts, Thomas, Gorsuch, Kavanagh, and Barrett. Justice Kagan filed a dissent for the ages, joined by Justices Breyer and Sotomayor.

Alito holds that “Arizona’s out-of-precinct policy [right church, wrong pew rule] and HB 2023 [“ballot harvesting”] do not violate §2 of the VRA, and finds that HB 2023 was not enacted with a racially discriminatory purpose.

Supreme Court reporter Nina Totenberg at NPR reports, The Supreme Court Deals A New Blow To Voting Rights, Upholding Arizona Restrictions:

The U.S. Supreme Court on Thursday narrowed the only remaining section of 1965 Voting Rights Act, rendering the landmark civil rights law close to a dead letter.

Arizona had banned so-called “ballot harvesting” as well as a policy that threw out an entire ballot if it was cast in the wrong precinct.

The 6-3 vote was along ideological lines. Justice Samuel Alito write the majority opinion for the court’s conservatives. Justice Elena Kagan and the court’s two other liberals dissented.

The “Court declines in these cases to announce a test to govern all VRA [Section 2] challenges to rules that specify the time, place, or manner for casting ballots,” Alito wrote. “It is sufficient for present purposes to identify certain guideposts that lead to the Court’s decision in these cases.”

The landmark law, widely hailed as the most effective piece of civil rights legislation in the nation’s history, was reauthorized five times after its original passage in 1965, but for all practical purposes, all that is left of it now is the section of the law banning vote dilution in redistricting, based on race.

Eight years ago, the court by a 5-to-4 majority gutted the law’s key provision, which until then required state and local governments with a history of racial discrimination in voting to get approval from the U.S. Justice Department for any changes in voting procedures.

When that provision was struck down by the court in 2013, the only protections for voting rights that remained in the law were in Section 2.

Though Section 2 has largely been used to prevent minority vote dilution in redistricting, importantly, it does bar voting procedures that “result in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” So the Arizona case was viewed as particularly important because it was the first time the court dealt with a claim of vote denial under Section 2 and how to evaluate it.

“This Court has no right to remake Section 2,” Kagan wrote in her dissent. “Maybe some think that vote suppression is a relic of history—and so the need for a potent Section 2 has come and gone. … But Congress gets to make that call. Because it has not done so, this Court’s duty is to apply the law as it is written. The law that confronted one of this country’s most enduring wrongs; pledged to give every American, of every race, an equal chance to participate in our democracy; and now stands as the crucial tool to achieve that goal. That law, of all laws, deserves the sweep and power Congress gave it. That law, of all laws, should not be diminished by this Court.”

Specifically at issue were two laws. One barred the counting of provisional ballots cast in the wrong precinct [the right church, wrong pew rule.]. The other barred the collection of absentee ballots by anyone other than a family member or caregiver [what Republicans call “ballot harvesting.“]

Arizona Republicans and the Republican National Committee argued that both were needed to prevent fraud. But the Ninth Circuit Court of Appeals ruled that there was no record of fraud, and that there was evidence that these two provisions ended up denying many minorities the right to vote. The appeals court noted, for instance, that ballot collectors were needed in some large, rural and remote parts of the state. It pointed, for instance to the Navajo Nation, an area the size West Virginia, where there are few post offices or postal routes, and where people without cars often have no way to send their ballots without collectors picking them up.

“I am thankful the justices upheld states’ ability to pass and maintain commonsense election laws, at a time when our country needs it most,” Arizona Attorney General Mark Brnovich, who defended the state law, said on Twitter.

Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense Fund, said on Twitter: “We are fighting against the most concerted state-based effort to undermine Black voting strength since the Civil Rights Mvmt. And in that context, the Supreme Court has again, & w/abandon, shredded a core provision of the Voting Rights Act.”

Arizona, of course, has been ground zero for Donald Trump’s claims that the election was stolen, and a Trump-inspired audit has been taking place (took place) in the state in May. The attempt to undo the certification of the election results was widely discredited, even by some Republican officials, and was meaningless because the state’s electoral voter were long ago certified for Joe Biden.

But the court’s decision could play an important role in next year’s mid-term elections, and elections thereafter. [Unless Congress passes he For The People Act and the John Lewis Voting Rights Advancement Act.]

Many Republican dominated states have passed laws far more problematic than the two at stake in Arizona. Indeed, the two laws at the center of Thursday’s case are not unusual. Other states have enacted limits on absentee ballot collectors, especially when fraudulent practices have been uncovered. Although the Ninth Circuit found no evidence of fraud in the Arizona election system, problems with absentee ballot collection systems have occurred elsewhere. Perhaps the most prominent example came in 2018 in North Carolina when a Republican vote collection and tampering scandal resulted in a new congressional election being ordered for one district.

In the wake of Trump’s false allegations that Democrats stole the 2020 election, many states, particularly those dominated by Republicans, have sought to change voting laws in a way that critics say is aimed at curtailing the right to vote, particularly among minorities. Last month, the Brennan Center for Justice reported that 22 new voting laws had been enacted and 389 proposed in 48 states just since the 2020 election.

The U.S. House of Representatives passed a bill, H.R.1, [the For The People Act], that would have set federal standards and overridden voter suppression provisions across the country, but in the Senate opponents blocked consideration of the bill.

Alito found no evidence of discriminatory intent despite the admission on the record from the Republican’s attorney at oral argument, who said the quiet part out loud. “Not having such restrictions ‘puts us at a competitive disadvantage,’ said lawyer Michael Carvin, on behalf of the GOP. ‘Politics is a zero sum game, and every law they get through an unlawful interpretations of Section 2 hurts us.'”

The court’s decision is likely to further increase pressure on President Biden and congressional Democrats to pass voting reform legislation. Those efforts have stalled both because of Republican opposition as well as a lack of support from Democratic Sen. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona to eliminating or reforming the Senate filibuster rule.

The last opinion of the Court’s term was Americans for Prosperity Foundation v. Bonta, another partisan 6-3 decision. the majority opinion by Chief Justice Roberts made an absolutist defense of “dark money” by nonprofit organizations, but some of the Justices joining his majority opinion did not go that far. Justices Kavanaugh and Barrett joined in full, but Alito and Gorsuch only joined most of it. Thomas joined all but two parts. There is also a Thomas opinion concurring in part and in the judgment, and an Alito opinion concurring in part and concurring in the judgment, joined by Gorsuch. In other words, the opinion is a mess.

Nina Totonberg continues, The Supreme Court Throws Out A State Law Requiring Nonprofits To Name Rich Donors:

The U.S. Supreme Court on Thursday sided with rich donors and their desire to remain anonymous against a state law aimed at policing the finances of charities and other nonprofits.

you’re shocked, I’m sure (dripping with sarcasm).

By a 6 to 3 vote along ideological lines, the court struck down California’s law requiring nonprofits to file a list of their large donors with the state. The court said that the law subjected donors to potential harassment, chilling their speech in violation of the First Amendment.

This is the false premise that “money = speech,” and “disclosure = chilling that speech.”

Under the California law, the tax-exempt groups were to attach to their filings with the state a copy of their IRS form reporting the names and addresses of all donors who gave more than $5,000 or 2% of the organization’s total donations.

The case was brought by the Americans for Prosperity Foundation, a tax-exempt nonprofit founded by Charles Koch and his brother David Koch, who died in 2019, as well as the Thomas More Law Center, another conservative group.

In his opinion for the court’s conservative majority, Chief Justice John Roberts said the court was applying exacting scrutiny, not strict scrutiny in analyzing the California measure.

“While exacting scrutiny does not require that disclosure regimes be the least restrictive means of achieving their ends, it does require that they be narrowly tailored to the government’s asserted interest,” he wrote.

Historically, it is state attorneys general who police charities, and in California, a state with 115,000 charities, that is a big job.

Jan Masaoka, the CEO of the California Association of Nonprofits, compares the California regime to the Federal Aviation Administration’s system of regulation. Just as the FAA needs information from airplane manufacturers and airlines to ensure safety in air travel, California and other states need information from charities to ferret out fraud and self-dealing.

“All of us–nonprofits and donors–we want to have that confidence that the rules are being enforced, and we need the [state] attorney general to do that,” Masaoka says.

“This fight is a skirmish in a larger war,” observes Sean Delaney, who headed up enforcement for a similar law in New York state. Whether New York’s regime or similar provisions in other states can remain in place remains an open question now that the Supreme Court has invalidated the California law.

In her dissent, Justice Sotomayor wrote: “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.”

Even more 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.

At the same time, tax regulators would like to see oversight rules toughened up to prevent tax-exempt charities from being used for partisan purposes.

Thursday’s decision, however, could put the kibosh on that idea. In fact, the decision is likely to make the job of any agency watchdog a lot harder.

This likely derails the “Dark Money” initiative in Arizona.

Finally, the Chief Justice’s final announcements for the term did not include a retirement announcement from Justice Stephen Breyer, who is 82.

UPDATE: I strongly recommend, as I have before, that the John Lewis Voting Rights Advancement Act [and HR 1/ S 1] must contain a provision stripping Article III courts of jurisdiction to review the statute. As Christopher Sprigman explains, A Constitutional Weapon for Biden to Vanquish Trump’s Army of Judges (excerpt):

[A]s it happens, [there’s] a deeper reform that the Constitution specifically authorizes. Article III of the Constitution gives Congress substantial power to strip federal courts’ jurisdiction: a power that can be employed to rein in politicized courts and even to override judicial decisions, at least when courts are standing in the way of change that a substantial and enduring political coalition wants.

How would jurisdiction-stripping work? Start with the source of Congress’s authority. Article III, section 1 gives Congress complete discretion on whether to create the lower federal courts, a power that Congress has used from the founding to limit lower courts’ jurisdiction. And Article III, section 2, clause 2 explicitly empowers Congress to make “exceptions” to the Supreme Court’s appellate jurisdiction—that is, to pick and choose for approximately 99% of the Supreme Court’s total docket what cases the Court has the power to hear. As I explain in this article, to be published in December in the New York University Law Review, under its Article III authority, Congress can remove the Supreme Court’s appellate jurisdiction over particular cases, or particular issues, largely without constraint. 

Congress also has the power to limit the jurisdiction of state courts to hear federal questions, including constitutional claims. But on a practical level, it would not matter much even if state courts still hear federal constitutional claims. State courts lack both the authority to enjoin federal officials and the practical institutional power to counter a determined federal government. 

The implications of Congress’s Article III power are potentially profound. Congress’s power over courts’ jurisdiction means that it can claim for itself authority to interpret the Constitution in particular cases.

Chief Justice John Roberts, who has spent his entire professional legal career seeking ways to undermine the Voting Rights Act of 1965, would be defanged, powerless to inflict any more damage on voting rights. Congress must safeguard the fundamental constitutional right to vote from right-wing reactionary judge’s attempts to preserve a tyranny of white Republican minority rule in an increasingly diverse America.