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Selective originalism and selective textualism: How the Roberts court decimated the Voting Rights Act

This article is part of a symposium on the court’s decision in Brnovich v. Democratic National Committee.

David H. Gans is the director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center.

The Roberts court continues to issue rulings that harm our democracy. On Thursday, it once again struck a savage blow to our nation’s best frontline defense against racial voter suppression. 

The Voting Rights Act — the crown jewel of the civil rights movement that John Lewis and so many other freedom fighters fought and bled for — established two powerful weapons to ensure that the constitutional right to vote would be enjoyed equally by all regardless of race: It required jurisdictions with a long history of voting discrimination to seek preapproval for new voting changes, and it established the results test, a broad nationwide prohibition on state electoral regulations — a prohibition that targets discriminatory results, not merely discriminatory intent.

Eight years ago, Shelby County v. Holder nullified the preclearance requirement by ignoring the text and history of Congress’ explicit power to enforce the 15th Amendment’s promise of racial equality at the polls, practicing a selective form of originalism. Thursday’s ruling in Brnovich v. Democratic National Committee guts the results test by construing away its central mandate of equal voting opportunity. Between these two rulings, the Supreme Court has converted the landmark statute that enforces the Constitution’s promise of a vibrant, multiracial democracy into little more than a historical relic that sanctions modern forms of voter suppression. Brnovich is yet another reminder that rewriting the rules of our democracy to make it harder to vote is one of the central legacies of the Roberts court.

Section 2 of the Voting Rights Act is known as the results test because it prohibits any state electoral regulation that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race.” Justice Samuel Alito’s majority opinion studiously ignores this language. Instead, Alito relies exclusively on the part of Section 2 that explains how a violation of the results test is established. That section establishes liability where “the political processes . . . are not equally open to participation” to citizens of color “in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Alito’s opinion for the court insists that “equal openness” is the “touchstone” under Section 2 and slights the statute’s explicit requirement that voters of color not be saddled with “less opportunity” than other voters. He insists that “equality of opportunity” is not a “separate requirement” under the act. It is enough, he suggests, if the political processes are equally open to voters of color. The majority’s tortured, highly selective textualism turns a blind eye to virtually all of Section 2’s key safeguards of voter equality.     

Alito’s majority opinion devises a series of factors to guide lower courts, all of which, in essence, are tools to be utilized to throw voters out of court. If a law simply imposes what Alito calls the usual burdens of voting, it cannot be challenged. If a law conforms to standard practice existing in 1982, when the results test was added to the Voting Rights Act, it most likely cannot be challenged. If a voting rule imposes only small disparities for voters of color, it cannot be challenged. If a voting rule challenged as discriminatory is offset by other voting opportunities, it cannot be challenged. If a voting rule serves legitimate government interests, it most likely cannot be challenged. As Alito writes, “[r]ules that are supported by strong state interests are less likely to violate §2.” Alito gives special deference to the prevention of electoral fraud, calling it a “strong and entirely legitimate state interest” that can “undermine public confidence in the fairness of elections and the perceived legitimacy of the announced outcome.” The majority defers to state efforts to prevent fraud, ignoring the long history of fraud as a pretext for racial discrimination and the possibility that lies about voter fraud might be used, as they were in the 2020 elections, to undermine the legitimacy of the vote.

The factors laid out in Brnovich find no footing in the text and history of the Voting Rights Act or in any relevant canon of statutory interpretation. The majority opinion, as Justice Elena Kagan’s brilliant and searing dissent put it, “is mostly a law-free zone.” Rather, what does most of the work is the majority’s faulty view of federalism. The majority insists that the Voting Rights Act must be interpreted to give states broad leeway to regulate the electoral process. Alito’s opinion rejects the notion that courts applying the results test should closely scrutinize laws that disproportionately disenfranchise voters of color. “Demanding such a tight fit would have the effect of invalidating a great many neutral voting regulations with long pedigrees that are reasonable means of pursuing legitimate interests. It would also transfer much of the authority to regulate election procedures from the States to the federal courts.” Rather than enforcing the Voting Rights Act’s mandate of equality of opportunity, the majority defers to the states, largely giving them license to ignore the act’s promise of a vibrant, multi-racial democracy open to all regardless of race.  

The majority’s view of federalism is chilling and amnesiac. The whole point of the Voting Rights Act — and the 15th Amendment, which it enforces — was to redress a long history of state-sponsored racial discrimination that treated citizens of color as second-class citizens and denied them one of our most cherished rights: the right to vote. The 15th Amendment transformed the Constitution by empowering Congress to enact prophylactic measures, such as those contained in the Voting Rights Act, to stamp out arbitrary roadblocks inhibiting full participation in our democracy by citizens of color. The majority’s hands-off approach turns both the Constitution and the Voting Rights Act on its head.

We have a deeply conservative Supreme Court that claims to follow text and history where they lead, both in matters of constitutional and statutory interpretation. Shelby County and Brnovich show how often those promises are bankrupt. The Roberts court is willing to bend the law in any way it can to make the right to vote a second-class right and roll back our Constitution’s promise of a democracy open to all.

Recommended Citation: David Gans, Selective originalism and selective textualism: How the Roberts court decimated the Voting Rights Act, SCOTUSblog (Jul. 7, 2021, 11:10 AM),