At last! On the final day of the term, having saved Obamacare and only slightly abridged LGBTQ equality, the Supreme Court’s conservative majority did what the Federalist Society, Donald Trump, and a coterie of dark money funders put them there to do: degrade American democracy.
In two cases, both split 6-3 along ideological lines, the Supreme Court allowed states to make it harder to vote while prohibiting them from unmasking ‘dark money’ groups. What’s more, it did so in broad, expansive terms, giving a green light both to the wave of voter suppression initiatives in Republican-controlled states and to the mysterious, anonymous donors who are funding them.
Today’s news is a gigantic win for the Republican party. Its secretive billionaire donors—one of the cases was brought by the Koch family front group, Americans For Prosperity—now have a blank check to write more checks. And its efforts to reduce turnout among Democratic-leaning voters—primarily Black and other voters of color—can proceed full speed ahead.
The voting rights case, Brnovich v. Democratic National Committee, concerned two Arizona voting restrictions. One bans “ballot harvesting” (which despite its sinister name is simply the practice of volunteers gathering sealed ballots and dropping them off at a polling place), and the other requires that ballots cast at the wrong precinct be thrown away, rather than rerouted to the correct precinct and counted.
The court found that neither rule violates the Voting Rights Act.
By 2021 standards, these restrictions are fairly tame. They absolutely hit lower-income and less-engaged voters more, and those voters tend to be predominantly non-white and Democrat-leaning. And the rules are based, like all Republican “ballot integrity” measures, on no evidence whatsoever. Republicans have been making voter fraud claims for decades now, and have never, not once, shown that there is a significant problem here to solve.
But, compared with closing voting locations in predominantly Black areas and banning people from passing out water in long poll lines, these two rules are pretty milquetoast.
Justice Samuel Alito, however, writing for the majority, took this occasion to further eviscerate the Voting Rights Act, rendering the already-crippled law (the court voided most of it in 2013) practically useless. Rather than look at the impact of the law on minority populations, which is obviously the intent of the Voting Rights Act but which Justice Alito explicitly rejected, the court’s new standard offers up five “important circumstances” that must be taken into account in evaluating a challenged law: the “size of the burden imposed,” the law’s novelty, the disparity in the impact on different racial groups, the “opportunities provided by a State’s entire system of voting,” and the strength of the state’s interests at stake.
In practice, this amalgam of factors makes it almost impossible to challenge a voting restriction. For example, the “opportunities provided by a State’s entire system of voting”? That’s ridiculous. If a state offers 10 ways to vote, but then bans the one way that happens to be most used by Black populations, it shouldn’t matter that there are nine other ways available. What should matter is that the state has targeted Black voters. But under the court’s new rule, the fact that there are other ways to do it would doom any challenge.
Likewise with the “size of the burden imposed.” That, too, should be irrelevant to a race discrimination case. After all, is it such a burden to use a water fountain marked “Colored” instead of the one marked “Whites Only”? The water is the same, right? Obviously, the “size of the burden” shouldn’t matter; what should matter is the impact of the law. Racist water fountains broadcast a message of racism; voting restrictions that disproportionately impact Black populations turn that message into law. The size of the burden should be completely irrelevant.
Perhaps worst of all, Justice Alito’s opinion specifically said that states don’t even have to provide reasons for their restrictions. “Section 2 [of the Voting Rights Act] does not require a State to show that its chosen policy is absolutely necessary or that a less restrictive means would not adequately serve the State’s objectives,” he wrote.
That is a voter suppression nuclear bomb. It means that state legislatures can enact voting rules for no reason whatsoever. Republicans don’t even have to pretend that there’s widespread voter fraud, let alone offer evidence for it. According to the Supreme Court, they can restrict voting just because they feel like it.
If Justice Alito’s brazen rewriting of the law is a nuclear bomb, its target is the Voting Right Act. As Justice Elana Kagan wrote in dissent, “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.’”
That is absolutely correct. There was no need for Justice Alito’s Five Barriers to Ever Challenging Voting Restrictions; he just invented them, and used them to destroy what’s left of the Voting Rights Act. Today’s decision is a giant permission slip to the Trumpists in Georgia, Texas, Florida, Iowa, and other states now desperately trying to prevent Black people from voting in the wake of the 2020 election. It is as appallingly bad as anyone could have expected.
The icing on the cake is today’s other decision, Americans for Prosperity vs. Bonta. That case concerned a California law that required charities to file the list of their principal donors—already disclosed to the IRS on their Form 990 Schedule B—in California, as well.
Two conservative foundations, one founded by Charles Koch, sued, saying this violated the First Amendment’s guarantees of free speech and freedom of association. Citing a 1976 Supreme Court case, they argued the disclosure would “subject them to threats, harassment, or reprisals from either Government officials or private parties.”
And yet, they couldn’t point to any instances of that actually happening. Their challenge was a “facial challenge” to the law on the books, so they never actually explained how providing a confidential filing to the State of California, containing information already provided to the IRS, would expose them to threats and harassment.
But no matter, said Chief Justice John Roberts, writing for the court. The mere threat of some disclosure and some harassment is enough to void the law. Indeed, Chief Justice Roberts analogized billionaire donors to right-wing foundations to donors to the NAACP in the 1960s, who really did face threats, harassment, and reprisals.
Moreover, as in Brnovich, Chief Justice Roberts went further than the case at hand to announce a new rule for any donor disclosure law, saying it must be “narrowly tailored to the government’s asserted interest.”
That is a second nuclear bomb. It applies to any future donor disclosure requirement, anywhere in the country. And, as Justice Sonia Sotomayor wrote in dissent, it holds that “regardless of whether there is any risk of public disclosure, and no matter if the burdens on associational rights are slight, heavy, or nonexistent, disclosure regimes must always be narrowly tailored.”
I can hear Charles Koch cackling from here. This is exactly what he wanted: a giant roadblock in front of any efforts to expose the “Kochtopus” or other dark money operations, all in the name of the First Amendment. Money can’t get everything, it’s true, but it can sure buy you some favorable Supreme Court rulings.
And the irony! A “small” burden on Black voters isn’t enough to stop Arizona’s voter suppression law, but a nonexistent burden on billionaires is enough to stop California’s efforts to rein in dark money. I guess some burdens are more equal than others.
Give the court credit where it’s due. It didn’t come through for the Trumpist attack on Obamacare, and it only partly came through for the Religious Right’s attack on LGBTQ people. But when it really mattered, when the survival of the minority-majority Republican Party was on the line, it delivered bigly. And we’ll be feeling the impact for decades to come.