Support The Bulwark and subscribe today.
  Join Now

How Will the Courts Respond to States’ New Restrictions on the Vote?

And what could a pending Supreme Court decision mean for the future of the Voting Rights Act?
June 14, 2021
How Will the Courts Respond to States’ New Restrictions on the Vote?
Wide-angle view of President Lyndon B. Johnson (seated) signing the Voting Rights Act at the U.S. Capitol on August 6, 1965, with Vice President Hubert Humphrey visible to the left and Martin Luther King Jr. to the right. (Bettmann / Getty)

As of late last month, fourteen states had passed twenty-two new laws restricting voting. Sixty-one other bills are still moving through eighteen state legislatures, and nearly four hundred such bills have been proposed in total. There will presumably be many court battles over the new legal barriers to the polls enacted by Republican legislatures across the country. But barring passage of legislation pending before Congress, it’s the Supreme Court that once again holds the cards when it comes to the success or failure of those lawsuits.

House Democrats’ sweeping federal answer to this problem, H.R. 1—otherwise known as the For the People Act—is dead in the water, due it its overbreadth as well as moderate Senator Joe Manchin’s (D-W.Va.) public announcement that he’s a “nay” regardless. Its more modest counterpart, H.R. 4—the John Lewis Voting Rights Advancement Act—is relatively palatable across the political spectrum. It’s the very fix to the Voting Rights Act that the U.S. Supreme Court invited when it destroyed the central piece of that legislation in 2013. But thus far, it hasn’t gotten past congressional Republicans. The courts are left to clean things up.

First, some background: The original U.S. Constitution contains no affirmative right to vote; it is via amendments that the Constitution prohibits laws limiting voting on the basis of race (the Fifteenth Amendment, 1870), sex (the Nineteenth Amendment, 1920), the ability to pay a poll tax (the Twenty-Fourth Amendment, 1964), and the like. And even when rights are express in the Constitution, litigants usually can’t just walk into court and cite the Constitution as a basis for a lawsuit. Congress must pass legislation authorizing what’s called a “cause of action” allowing people to sue.

For voting disparities, the relevant federal causes of action lie primarily in the Civil Rights Act of 1871, 42 U.S.C. § 1983, which allows individuals to sue states for violations of a number of constitutional rights, and in the Voting Rights Act (VRA) of 1965. (States have their own constitutions and their own sets of legislation containing private causes of action that also operate to protect voting rights to varying degrees.) Congress passed the VRA because, despite the Fifteenth Amendment’s ban on discrimination on the basis of “race, color, or previous condition of servitude,” states began passing cynical laws to keep non-whites from voting anyway. Section 201 of the VRA thus bans procedures like literacy tests, knowledge and educational achievement tests, and requirements of good moral character for voting.

For more nuanced incursions into voting rights like arbitrary voter identification rules (Texas, for example, accepts handgun licenses but not student IDs issued by the University of Texas), Sections 2 and 5 of the VRA are key. For years, Section 5 required states with bad histories of voter suppression to run new laws by the Justice Department for what was called a “preclearance” process. The Supreme Court scrapped that in 2013 by a 5-4 vote in Shelby County v. Holder. With H.R. 4, Congress would reinstate it. (Senate Minority Leader Mitch McConnell opposes even that much.) Despite its ruling in Shelby County, there was consensus on the Court that the preclearance process worked well to increase voter participation in American elections. Here’s Justice Ruth Bader Ginsburg writing in dissent: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

With Section 5 gone, the work of protecting voters shifted to Section 2, which states that

no voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.

Section 2 has been used primarily to challenge attempts to dilute the relative strength of votes cast by communities of color through maneuvers like redistricting—not to challenge voter-suppression laws, which was Section 5’s job.


By ironic coincidence, the fate of Section 2 as a means of litigating voter suppression questions is now in the hands of the U.S. Supreme Court again in Brnovich v. Democratic National Committee. A decision is expected any day now.

Brnovich involves a challenge under Section 2 of the VRA and the Fifteenth Amendment to two controversial Arizona laws: one that totally cancels provisional ballots that are cast mistakenly outside a voter’s assigned precinct on Election Day, and another that permits only certain persons (e.g., family members) to handle another person’s completed early ballot. Both laws were struck down by the U.S. Court of Appeals for the Ninth Circuit for allegedly hitting minority voters especially hard. Arizona is home to a number of American Indian reservations, for example, and only 18 percent of those registered voters have home mail service—a stunning 350 percent lower rate than white voters have. A relative lack of transportation compounds the problem of ballot-box access, as poll locations are more often moved around or put in out-of-the-way places that are difficult to reach within communities of color.

Still, election law expert Richard Hasen points the finger at one of the plaintiffs, the Democratic National Committee, for choosing to send these laws to the Court in the first place, calling them “two Arizona policies that are far from the most egregious voting rights violations,” thereby producing an “overreach of a case” under Section 2. As I’ve had occasion to remind readers here recently, bad facts often make bad law, and Brnovich now has voters in the crosshairs.

The legal issue in Brnovich boils downs to identifying what test should be applied to determine whether these kinds of laws violate Section 2. The statute itself doesn’t say. The Ninth Circuit sided with the voters, applying a test that Arizona Attorney General Mark Brnovich says is too lax. He and counsel for the Arizona GOP, Michael Carvin, argue that Section 2 can only be used in voter dilution cases in the first place—not to address restrictions on access to the polls, which was the primary job of Section 5. They would also impose a high bar for voter access cases that do get before a court, essentially seeking proof that state legislatures passed the law with the intention of discriminating against voters of color. Lower courts have come up with a mix of alternative tests, including the so-called “results test” applied by the Ninth Circuit, which asks whether a law disproportionately affects the ability of a racial minority voter to participate in the political process and, if so, whether there’s a link between the law and a history of inequality.

Although the Supreme Court’s conservative majority is unlikely to strike down these Arizona laws, the case lays bare the high-stakes game that’s playing out across the country, with one party—the Democrats—fighting for the rights of voters and the other fighting to keep voters from the polls on the fraudulent rationale of fraud. The Republican side, so far, is winning.

Oral argument in Brnovich came in early March, eight weeks after Donald Trump’s Big Lie about the 2020 election provoked the Jan. 6 violence at the Capitol—and just two days after the former president gave his first speech after leaving office, uttering falsehoods about American elections while his adoring CPAC audience chanted “You won!” Justice Amy Coney Barrett asked Carvin what his client’s interest is “in keeping out-of-precinct voter disqualification rules on the books.” Carvin didn’t invoke any principle; his response was blunt and nakedly partisan: “Because it puts us at a competitive disadvantage relative to Democrats. Politics is a zero-sum game. It’s the difference between winning an election . . . and losing.”

Unfortunately, the voters’ losing streak will continue in the courts if the unelected Supreme Court weakens or destroys Section 2 as a tool against voter suppression—just like it did to Section 5.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She is a professor at the University of Baltimore School of Law, a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation, and the author of How to Read the Constitution—and Why (HarperCollins) and What You Need to Know About Voting—and Why (HarperCollins). Her latest book is How to Think Like a Lawyer and Why—A Common-Sense Guide to Everyday Dilemmas. Twitter: @kimwehle.