Court Battles

Kagan rips colleagues in blistering 41-page voting rights dissent

Justice Elena Kagan ripped her conservative colleagues on the Supreme Court on Thursday in a blistering 41-page dissent, accusing them of ignoring the legislative intent of the 1965 Voting Rights Act as well as the high court’s own precedents. 

Kagan’s fiery dissenting opinion in a voting rights case, which was joined by the two other liberal members of the court, Justices Stephen Breyer and Sonia Sotomayor, accused her conservative colleagues of undermining Section 2 of the landmark Voting Rights Act and tragically weakening what she called “a statute that stands as a monument to America’s greatness.”

“Never has a statute done more to advance the nation’s highest ideals. And few laws are more vital in the current moment. Yet in the last decade, this court has treated no statute worse,” she wrote, in what is likely to become a rallying cry for Democratic lawmakers and progressive activists pushing for election reform laws, including the John Lewis Voting Rights Act, in Congress.

She warned that “efforts to suppress the minority vote continue” yet “no one would know this from reading the majority opinion.”

Kagan said the court in its 6-3 decision penned by stalwart conservative Justice Samuel Alito gave “a cramped reading” to the “broad language” of the voting law and used that reading to uphold two Arizona voting restrictions “that discriminate against minority voters.”

One is a 2016 Arizona law that prohibits the transporting of another person’s absentee ballot to election officials unless done by a family member or caregiver, a practice which critics call “ballot harvesting” but proponents say is necessary to give voters with limited mobility or in remote areas access to the polls.

The second is a longtime Arizona election rule that requires provisional ballots cast in the wrong precincts to be discarded.

Kagan argued that “in recent months, state after state has taken up or enacted legislation erecting new barriers to voting” and those laws shorten the time polls are open, imposed new prerequisites to voting by mail, make it harder to register to vote and easier to purge voters from the polls.

The court’s majority opinion upheld both policies and overturned an en banc decision by the 9th Circuit Court of Appeals in San Francisco that held the restrictions disproportionately impacted minority voters and thus violated the Voting Rights Act.

Alito wrote that the policies were not enacted “with a racially discriminatory purpose” and that the disparities in voting outcomes were too small to indicate the restrictions rendered the polls more open to some groups than others.

“The mere fact there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote,” he wrote.

With respect to transporting voters ballots to election officials, Alito noted that district court found that the ballot-collection restriction was unlikely to cause “meaningful inequality” because the restriction applied equally to all voters.

On the subject of discarding out-of-precinct ballots, Alito wrote that “having to identify one’s own polling place and then travel there to vote does not exceed the ‘usual burdens of voting.’ “

He also pointed out that a district court that upheld the restriction found that Arizona officials “made extensive efforts to reduce their impact on the number of valid votes cast” and made accurate precinct information available to all voters.

But Kagan shot back by arguing that Alito and the rest of the majority ignored the historical context of the Voting Rights Act as well as the court’s own precedents. 

“The majority’s opinion inhabits a law-free zone. It congratulates itself in advance for giving Section 2’s text ‘careful consideration’ … and then it leaves that language almost wholly behind,” she wrote. “So too the majority barely mentions this court’s precedents construing Section 2’s text.”

She argued the plain reading of the law would have justices look at the effect of voting restrictions and not just the intent of the state legislators who drafted them, contending that any reduction in a polling place’s hours or ability to send a ballot to an election official via a third party are most likely to affect minority voters. 

“The majority says as little as possible about what it means for voting to be ‘equally open’ or for voters to have an equal ‘opportunity’ to cast a ballot,” she wrote. “It only grudgingly accepts — and then apparently forgets — that the provision applies to facially neutral laws with discriminatory consequences.” 

She cited late conservative Justice Antonin Scalia’s dissent in the 1991 case Chisom v. Roemer in which he opined a supposedly neutral law that limited voter registration to only a few hours a week and thus made it more difficult for Black voters than white voters to register because of life circumstances would result in Black people having “less opportunity to participate in the political process than whites.” 

She argued that in enacting Section 2 of the Voting Rights Act, Congress “documented many similar (if less extreme) facially neutral rules” such as registration requirements and voting and registration hours and purging policies that resulted in disparities of voting opportunities. 

Turning specifically to Arizona’s voting laws, Kagan argued they had a disproportionate impact on its minority voters.

She noted that in 2012, Arizona accounted for about a third of the 35,000 ballots nationwide that were thrown out because they were cast in the wrong precinct. And she said that Arizona’s out-of-precinct policy resulted in Hispanic and African American voters’ ballots being thrown out at a statistically higher rate than those of white voters. 

She argued that restrictions on ballot collection were especially burdensome for Native American voters in Arizona who “need to travel long distances to use the mail.” 

In summation, she argued that Congress enacted the Voting Rights Act to “address a deep fault in our democracy — the historical and continuing attempt to withhold from a race of citizens their share of influence on the political process,” and that it is up to Congress not the court to decide whether the law needs to be remade or not. 

“That law, of all laws, deserves the sweep and power Congress gave it. That law, of all laws, should not be diminished by the Court,” she wrote. 

Tags Elena Kagan John Lewis Samuel Alito Sonia Sotomayor Stephen Breyer

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