The Latest SCOTUS Ruling Shows Why We Need New Voter Protection Laws
The Voting Rights Act wasn’t designed for this
The Voting Rights Act did what it was supposed to do. When the law was signed in 1965, Black voter registration in Mississippi was 6.7 percent; two years later, it was nearly 60 percent. It’s a legendary law -- one of the all-time greats. Which might make us a bit reluctant to acknowledge that it may have entered its Brett-Favre-playing-for-the-Vikings phase.
The VRA remains useful protection against race-based discrimination (despite being weakened by the Court in 2013). But it’s not surprising that a law drafted when you could still smoke in a neonatal unit is poorly suited to stop modern forms of voter suppression. What is surprising is that the law might actually be enabling voter suppression in some important ways. Last week’s Supreme Court ruling on Arizona’s voting laws showed that the VRA is inadequate at best and an impediment at worst when it comes to stopping modern voter suppression.
The most jaw-dropping moment from the oral arguments was this exchange between Justice Barrett and Michael A. Carvin, a lawyer for the Arizona Republican Party:
JUSTICE BARRETT: What's the interest of the Arizona RNC here in keeping, say, the out-of-precinct voter ballot disqualification rules on the books?
MR. CARVIN: Because it puts us at a competitive disadvantage relative to Democrats. Politics is a zero sum game, and every extra vote they get through unlawful interpretations of Section 2 hurts us. It's the difference between winning an election 50 to 49 and losing 51 to 50.
There you have it. There’s the entire game, revealed. For all the talk of voter fraud and the election integrity -- for every Big Important Voter Fraud Investigation that finds nothing and every Heritage Foundation database that accidentally proves how rare voter fraud is -- here’s an RNC lawyer responding to the question “why are you doing this?” with “‘cause we wanna win.” It’s like if you asked Guns ‘N Roses why they got back together and they said “because of money! We desire money. We think reuniting will result in us acquiring money.”
Why was the RNC lawyer so blunt? The answer is simple: Voter discrimination based on race is illegal, but discrimination based on partisan affiliation isn’t.1 The VRA actually creates an incentive to make the partisan argument; Section 2 includes an “intent test”, in which the party challenging a voting practice has to show that “the challenged practice was adopted, at least in part, because it would harm minority voting strength.” That is: You have to prove the other side meant to be racist.2 If the defendants argue “we did this to please the Dark Lord Satan, fetid be His name,” or “we did this as part of a prank show called ‘PWNED!’ airing Thursdays on FX”, that’s fine. Everything except racism is fine. “To impress the hot lady who works at the putt-putt golf” = fine. “Because I was high on angel dust” = fine. “I was trying to subvert democracy by tipping the playing field towards Republicans” = fine. The VRA only covers racism.
This dynamic was front-and-center in a major gerrymandering case in 2019. North Carolina gerrymandered its congressional map to an absurd extent: In 2016, Republican congressional candidates won 53 percent of North Carolina’s vote, but gerrymandering allowed them to take 10 of 13 House seats. Shortly before that map was drawn, Republicans had a different map thrown out due to racial gerrymandering, so they went to great lengths to make the non-racist intent of the new map clear:
North Carolina Rep. David Lewis (R): “We want to make clear that, we -- to the extent, are going to use political data in drawing this map, it is to gain partisan advantage on the map. I want that criteria to be clearly stated and understood.”
That is clear! And understood! I honestly don’t know how he could be more clear; a super-villain who has James Bond handcuffed to a missile would be less revealing of his plans. But Lewis wasn’t done: He actually penned a lengthy essay in The Atlantic arguing that the Voting Rights Act enables -- borderline requires -- partisan gerrymandering. The Supreme Court agreed, ruling that federal courts had no role adjudicating a partisan gerrymandering claim. All the VRA really does in this area is regulate the type of anti-democratic bullshit that’s allowed.
The VRA is all over the...damn it, I see no way to avoid this pun...map on gerrymandering. Everyone knows what problem the law’s gerrymandering provisions were written to solve: Jim Crow-era politicians drew congressional maps that split Black voters between districts, diluting their power. This is called “cracking”, as in “cracking a voting bloc into several pieces'', and not as in whatever drug-and/or-anus-related meaning “cracking” surely has amongst The Kids Today. So: The law requires you to group racial groups together in districts. But grouping people together in a district is a practice called “packing”, as in “packing people together in a district”, and not as in the Urban Dictionary definition of “when a lesbian wears a strap-on dildo while running errands”, which is not a thing, Kids. Packing, like cracking, dilutes voting power -- North Carolina’s heavily-gerrymandered map packed Black voters into three very-blue districts. A half-century of case law has failed to answer the question “what, exactly, is the goal here?” You’re supposed to group Black voters together, but not, like...too much. And if you ask questions like “what if voters of the same race have different preferences?” or “what if there are many races in a state instead of just two?”, the law has no answers, because it was written in 19 sixty-and-fucking-five, when there were only two races, three auto-makers, and one King of Late Night and his name was JESUS.
It’s time to put the VRA out to pasture. And I don’t mean “put out to pasture” in a harsh way, like we do with humans; I mean the nice version of “put out to pasture” that we do with horses, the kind that’s just an apple-fueled fuckfest in a meadow. The VRA deserves that. And we don’t need to repeal it. But we need to recognize that it’s not built to tackle the challenge of modern voter suppression.
What would an effective bill look like? I’ll speak hypothetically, because all talk about voting rights laws is hypothetical until we repeal the filibuster. The recently-deceased For the People Act was, in my opinion, not a perfect bill, but it did one big thing right: It shifted the focus away from disallowing bad practices and towards requiring good practices. A voting rights bill that outlaws today’s voter-suppression tactics can be made obsolete by tomorrow's tactics. One reason the VRA is out-of-date is that Republicans have shown Disney-esque levels of imagination when it comes to making it hard to vote. Instead of just banning bad stuff, we should require good stuff: things like early voting, mail-in voting, and same-day registration. And election day should be a national holiday; we only vote on Tuesdays for reasons that have to do with Church attendance and agriculture. Speaking of ridiculously-outdated laws.
If we can establish a high baseline for voter access, any around-the-edges stuff that Republicans do will matter less.3 If I’m being perfectly honest -- which I try to do occasionally on this blog -- I think some of these fights are pretty marginal. For example: The Arizona case was partly about “ballot harvesting”,4 and I have no problem with ballot harvesting, but I’m also not ready to storm the Bastille now that it’s been banned. The effect on future elections will be small; Alito repeatedly referenced the measures’ small size on his way to invoking the Constitution’s “itty bitty clause”.5 One weird thing about these fights is that they assume high turnout helps Democrats, but there’s mounting evidence that that might not be true. In a practical sense, the best way to defeat voter suppression is probably to make it such a potent campaign issue that it becomes a net-positive for Democrats, at which point Republican fears about “voter suppression” will disappear.
The most important fights, in my opinion, are on two fronts: Gerrymandering and election subversion. The last thing I’ll say about Gerrymandering is that technology has made it extremely effective. Every baseball fan knows how “big data” has transformed the game; instead of playing positions, baseball teams now have all nine guys stand in the spot where Science says the ball will be hit, and Science is usually right. Gerrymandering has undergone a similar change; technology has made it an entirely new beast. And “election subversion” -- making it easier to manipulate or challenge the vote count after ballots are cast -- is categorically different from anything that’s come before. Republicans in several states are laying the groundwork to contest a close election; it’s ominous stuff. Voter suppression is attempting to rig the rules of the game in your favor; election subversion is reserving the right to flip over the board if you don’t like how the game turns out.
Truth be told, when Republicans say “this is about partisanship, not race,” I believe them. If Republicans could pass a law that would boost Black Republican turnout while suppressing the white liberal vote, I have no doubt that they’d do it. They're actually sort of able to do this sometimes; one group heavily affected by voter suppression is young people, who are too busy adding new definitions of "packing" to Urban Dictionary to jump through hoops required to vote. But "young" isn't a race, so it’s not covered by the VRA. Republican claims that they're staying within the bounds of the VRA aren't entirely bullshit. The VRA was designed to fight race-based voter discrimination, and it did that to great effect. But it needs a supplement, as in “a law designed for modern voter-suppression methods”, and not as in the Urban Dictionary definition of “code name for a hottie in the workplace where perving on coworkers is frowned upon” (Kids, we really need to talk).
Or at least: There is no black-letter federal law explicitly prohibiting partisan voter suppression, and attempts to clearly establish that precedent under existing law have failed.
A claim doesn’t automatically fail if the intent test isn’t met; it can still succeed if the effect is racially discriminatory. But a claim that meets the intent test is more likely to succeed.
For the record: I also oppose any voter suppression done by Democrats. My principle is that voting should be as easy as possible. And Democrats have engaged in voter suppression in the past, especially when it comes to gerrymandering. But at the moment, the dynamic is generally that Democrats want to make voting easier and Republicans want to make voting more difficult.
“Ballot harvesting” is when you give your ballot to someone -- usually someone who’s part of a campaign or other political group -- and that person brings your ballot to the polling station. Personally, I wouldn’t do it; it’s unlikely they’d be able to alter my vote (which is sealed), but it’s conceivable that they could guess how I’m going to vote and throw my ballot in the gutter. But even in that worst-case scenario, the injury has fallen on me, the person who -- like a dumbass -- decided to hand my ballot to a ballot-harvester. So I don’t see how the state is protecting my interest by outlawing ballot harvesting.
There is no “itty bitty clause” in the Constitution. But Justice Alito did opine that one reason why Arizona’s measures were legal is because their effect will be relatively small.