Tuesday’s SCOTUS Hearing on Voting Rights Revealed How Far We’ve Slid...and Why Elena Kagan Is a Hero

The future of the the Voting Rights Act hangs by one or two votes, at best.

At a hearing by the U.S. Supreme Court yesterday over the fate of the 1965 Voting Rights Act, there were plenty of villains. Neil Gorsuch and Samuel Alito appeared ready to join Thomas to jettison the law’s voter protections entirely. The “swing votes” on the Court (and I hesitate to call them that) seemed at least a bit troubled by the broad implications of the GOP’s arguments. They searched about for some middle ground that might preserve the Voting Rights Act for the most egregious outlier cases of voter suppression.

And there was the hero of the day: Justice Elena Kagan.

Photo Credit: Tom Williams / Getty Images

At issue was whether two of Arizona’s laws that toss out votes cast in the wrong precinct and forbid third parties from delivering mail-in ballots of voters are illegal because they create a widely “disparate impact” on minority voters. The Ninth Circuit had found that minority voters were disproportionately impacted by these laws—in a state with history of acting this way toward them.

Gorsuch pressed the point that states have an interest in preventing ballot fraud (even though there is no evidence of any widespread issue), while Alito tested the absurdist limits of what could be considered a truly negative impact on minority voters. Chief Justice Roberts and other conservative justices cited a 2005 report issued by former President Jimmy Carter and former Secretary of State James Baker that noted “ballot collection” presented a particular potential for fraud. But it was Justice Kagan who truly took up the heart of the matter: Where can you draw the line for what constitutes a violation, especially as new laws have an increasingly discriminatory impact? When is it obvious that a new law makes voting not “equally open” to minorities?

Here was her impressive exchange with Republican lawyer Michael Carvin, lobbing hypotheticals at him that demonstrated the fundamental problem of voter suppression laws:

KAGAN: So the first one is that the state decides that each county can have one poll place, and because of who lives in larger counties, that creates a disparate impact that black voters have to wait in line for 10 times the amount that white voters do, two-and-a-half hours instead of 15 minutes. Is that system equally open in the language of the statute?

CARVIN: I would think not. “Equally open” means “takes into account demographic reality.” If you have one polling place for five people and one polling place for 5 million people, obviously, in the latter situation, those people do not have an equal opportunity to vote. So, no…

Having gotten him to concede that “demographic reality” should play a part in whether a new law is “equally open” for minority voters, she then raised a real world example from a recent Georgia law, which rendered Carvin’s argument strained and left him stumbling:

KAGAN: Okay. How about—how about this one? A state has long had two weeks of early voting, and then the state decides that it’s going to get rid of Sunday voting on those two weeks, leave everything else in place. That—black voters vote on Sunday 10 times more than white voters. Is—is that system equally open?

CARVIN: I would think it would be because—let’s think about it—Sunday is the day that we traditionally close government offices.

KAGAN: It’s a—you know, it’s an exception—to have government workers come in on a Saturday too. That’s not—that's not a real problem.

She quickly demonstrated the logical fallacy of his reasoning on “equally open” when it came to geographic limits, which he deemed problematic, but not on time limits, which he considered acceptable:

KAGAN: Can we go—just go on to another one? The state says, “We’re placing all our polling places at country clubs.” And that decision means that black voters have to drive 10 times as long to the polls and have to go into places which, you know, are traditionally hostile to them.

Carvin agreed that such a setup would not be “equally open.”  Kagan then pressed him on the time limitations again, asking whether cutting back polling hours to business hours only, which would disparately impact minority voters who work later shifts:

KAGAN: [W]e’re going to have Election Day voting only, and it’s going to be from 9 to 5. And there’s plenty of evidence in the record that voters of one race are 10 times more likely to work a job that wouldn't allow them to vote during that time period. Is that system equally open?

Carvin maintained that it would be and tried to stick to the idea that “traditional hours” were fine, but he had difficulty drawing a meaningful distinction. So Kagan cornered him, and he had to dodge the question:

KAGAN: So 9 to 5 is okay, but 10 to 4 would not be okay? Is that the idea?

CARVIN: Again, these are all hypotheticals that have never existed in the real world because—

KAGAN: You know, this doesn’t seem so fanciful to me.

Kagan is correct here. If interpreted the way the GOP and Arizona want, there’s nothing to stop inventive polling restrictions that leave the system not “equally open” to minority voters. The question then is, what standard should apply to measure this?

The “swing” justices all seemed ready in this case to rule that the Arizona laws at issue were fine, but some seemed troubled by the lack of limits for which the lawyers for Arizona were arguing. Judge Barrett observed, for example, that it was the job of the state to try and preserve equal opportunity for white and non-white voters. “There’s a difficulty that the statutory language and its lack of clarity presents in trying to figure out when something crosses from an inconvenience to a burden,” Barrett said. By this she seemed to accept the notion that at some point things do become an impermissible burden on minority voters.

One of the most telling moments came when Barrett asked what the state Republican Party’s real interest in the case was. A lawyer for Arizona gave this remarkably candid yet damning reply, admitting that the GOP was trying to ditch Section 2 in order to win more elections: 

“[I]t 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 50-49 and losing an election.”

For his part, Roberts asked a GOP lawyer why it’s “a bad thing” for election procedures to seek “racial proportionality”—signaling that he might favor keeping the law on the books at least. And Kavanaugh seemed to lean into the idea that if other jurisdictions used the same basic restrictions, that would indicate they were normal and proper—without acknowledging that there already a copycat race to the bottom by GOP legislators to impose as many restrictions as possible to tamp down minority participation.

Even though Kavanaugh’s proposal might further encourage states to mimic one another’s suppressive voter laws, it would at least leave in place the notion that some restrictions simply go too far. Barrett and Roberts would appear to agree with that. Sadly, even though it could give a green light to legislatures to pass ever more restrictive laws in lockstep with other states, keeping Section 2 alive but on life support is about the best we can hope for from this Court.