Earlier this summer in Brnovich v. Democratic National Committee, the U.S. Supreme Court’s Republican majority held an Arizona election law did not violate the federal Voting Rights Act, because it discriminatorily abridged the voting rights of only a few thousand voters of color. Prior to Brnovich, in Arizona Free Enterprise Club’s Freedom PAC v. Bennett, its Republican majority found Arizona’s campaign finance law did violate the First Amendment, because it enabled candidates relying on public campaign funding to spend as much on their campaigns as their privately financed opponents.
Taken together these cases show the Court’s Republican majority understands the right to purchase an election warrants considerably more protection than the right to vote in one, at least more than the right to vote of people of color.
In Brnovich the plaintiffs’ challenged two provisions of an election law, one which mandated that otherwise lawfully cast ballots be discarded if deposited in the wrong precinct and a second, which criminalized the delivery of mail-in ballots by any person other than a voter or her immediate family or caregiver. It was undisputed the former provision disproportionately caused the discarding of ballots cast by voters of color, in large part, because the state more often moved the polling places of voters of color, thereby increasing the frequency of their voting in the wrong precinct. Similarly undisputed was that the latter provision likely affected Native American voters disproportionately, since they had far less access to mail service than white voters. The most recent statistics indicated that thousands more voters of color than white voters would be disenfranchised by these provisions.
The plaintiffs maintained that this disparate impact on voters of color violated the 1965 Voting Rights Act, which had been enacted to end “discrimination in voting in America.” The Act prohibits any “standard, practice or procedure” whose effect is to deny or abridge the right to vote based on race, because, under the circumstances, including the continuing effects of race discrimination, it provides voters of color less opportunity to vote. This prohibition does not apply in cases in which such unequal voting opportunities are substantially unavoidable in order to advance an important state interest, such as preventing voter fraud.
The six member Republican majority cited several reasons to hold the discriminatory impact of the provisions in issue in Brnovich lawful. First, it found the vast majority of voters of color would not be affected, and therefore the law did not “seriously hinder” their voting. Furthermore, while there was no evidence these provisions were needed to protect any important state interest, the majority opined that close scrutiny of state election laws by federal courts was inappropriate, and not reflective of democratic norms. The majority also claimed its conclusion was supported by the fact that at the time the statute in issue was enacted, similarly discriminatory state election laws already were in operation.
Writing for the three Democratic justices on the Court, Justice Kagan’s dissent pointed out that the Voting Rights Act applied to all laws that resulted in voters of color having less opportunity to vote than other voters—there was no exception for laws that disparately burdened only some, say a few thousand, voters of color. Noting the majority’s disdain for federal courts closely scrutinizing the justifications offered by states for discriminatory election laws, Kagan pointed out that by enacting Section 2 of the Voting Rights Act, Congress had mandated such scrutiny—a mandate Congress had ample constitutional authority to issue. Kagan agreed that at the time of its enactment, there were state laws in existence imposing discriminatory restrictions comparable to those of the Arizona statute. She explained this did little to advance the majority’s holding, since rather than having grandfathered-in already existing discriminatory election laws, the Voting Rights Act was intended to eradicate them.
The public campaign financing statute in issue in the Arizona Free Enterprise case had been enacted through voter referendum after nearly 10 percent of Arizona’s state legislators had been caught exchanging votes on legislation for campaign contributions or bribes. Manifestly reflecting the voters’ intent that legislators support legislation in response to voters, rather than money, the law granted public campaign funds to any candidate who secured a minimum number of $5 campaign contributions, and agreed to a few other conditions. Participation in the system was entirely optional; candidates were free to rely on privately raised funds for their campaigns. However, to ensure candidates relying on public funding were not disadvantaged, and thereby to encourage participation in the public financing system, the law generally provided publicly funded candidates sufficient campaign funds to match the expenditures by privately funded opponents.
Chief Justice Roberts, writing for a five-member Republican majority, found the law violated the First Amendment rights of private campaign contributors and their candidates. Citing the court’s prior fantastic holding in the 1976 Buckley v. Valeo case, that campaign contributions are speech, Roberts observed that unrebutted speech often is more effective than rebutted speech, and that outspending one’s opponent can make it possible for a candidate’s speech to be unrebutted. Roberts reasoned that by allowing the publicly financed candidate to spend as much as the privately financed candidate, the law deprived privately financed candidates of the possibility of advantaging themselves by outspending the publicly financed candidate, and speaking without rebuttal. In so doing, Roberts explained, the law reduced the efficacy of their speech, which he declared to be a violation of the First Amendment.
In her dissent Justice Kagan, on behalf of the Democratic justices, pointed out that providing funds to the publicly funded candidate—funds equally available to all candidates who elected to not rely on private funding—did absolutely nothing to prohibit, limit or exact any cost from private campaign contributors or their candidates. Thus, neither precedent nor reason authorized the majority’s contention that the law violated the First Amendment. Indeed, Kagan observed that rather than guaranteeing any party the right to speak without rebuttal, the Court’s First Amendment decisions long had recognized the importance of a “free marketplace of ideas.” The Arizona law, by ensuring publicly funded candidates for office had the means to rebut the positions of privately funded candidates, actually facilitated competition in that marketplace, and thereby advanced this core First Amendment principle. In effect, the Arizona Free Enterprise majority recast the First Amendment as a mechanism for guaranteeing the rich and their agents the right to secure a monopoly in the marketplace of ideas—at least in what is perhaps the constitutionally most crucial corner of that marketplace, electoral debate.
At bottom, these cases show a Republican Supreme Court majority that largely has untethered itself from the law to advance an extremely anti-democratic ideology. In Brnovich, as Justice Kagan explained, “the majority’s opinion mostly inhabits a law-free zone.” In Arizona Free Enterprise Justice Kagan observed the rule of law established by the majority turned on “chutzpah.”
Contrasting the extraordinary lengths to which the Republican majority has shown it will go to enable the rich to effectively buy elections with its blithe disregard for the rights of people (at least those of color) to vote in elections should terrify all those concerned with the survival of our extremely weakened and problematic democracy. As it stands, it is entirely possible the fate of that democracy may be decided by this Court—and soon.
Congress has the power to ensure the Supreme Court majority is one committed to the law and to democracy. It can do so by increasing the size of the Court. Perhaps it also can do so by elevating the several hundred U.S. Circuit Court of Appeals judges to be Supreme Court justices to rotate onto the Court. Now, while our democracy remains more or less functional, and Democrats—the only one of the two major parties committed democracy—control the presidency and the Congress, might be a good time for Congress to take one or both of those actions.