Supreme Court unduly manipulates burdens on voting and privacy

The Supreme Court’s two final full opinions in its 2020 Term were significant beyond their facts and results. One case (Brnovich v. DNC) challenged two recent Arizona voting restrictions; the other (Americans for Prosperity Foundation v. California) attacked California’s requirement that non-profit organizations disclose their contributors’ names.

By 6-3 votes on July 1, the Court upheld the Arizona laws but invalidated the California regulations. A comparison of the facts — and, even more, attention to the Court’s language — should set off alarm bells. Arizona’s restrictions unquestionably burdened the right to vote, yet the Court sustained them. Simultaneously, the justices struck down California’s bureaucratic requirement as overly burdensome — though there was no factual basis that any right was actually burdened. (Non-profits, including political action groups, already had to gather and submit the same information to the IRS.) The Court’s obvious inconsistency revealed that when our current “conservative justices” leave the constitutional text to weigh a burden on a claimed right, that burden is magically light when the right is voting, yet mysteriously heavy when a right involves using money to influence politics and policy.

The Court’s ready acquiescence in Arizona’s restrictions on the right to vote is sadly familiar: It echoes the Court’s sustained willingness to allow nearly every devastating restriction placed on abortion rights, each time holding that the restriction did not impose an “undue burden.” To understand the Court’s somersault in the two July 1 cases, is to forebode its decisions about abortion. Roe v. Wade (1973) was the famous landmark case, but Planned Parenthood of Southeastern Pa. v. Casey (1992) replaced Roe’s analytic framework with a new “undue burden standard,” which the Court ostensibly has applied ever since. In so doing, the Court has been remarkably accepting of a broad array of significant restrictions on a woman’s right to choose, finding numerous burdens not to be “undue” — often despite tragic facts on the ground. In fact, some current justices — and not only those recently confirmed — have never seen a burden on abortion they deem undue. In the Dobbs case docketed for next term, the Court is primed to allow a still greater burden on a woman’s right to choose, if the right survives at all.

This doctrinal backdrop makes Brnovich’s permissive approach to burdens on voting ominous at best. The right to vote has been — and ought to be — ranked high among our most fundamental constitutional rights. Nonetheless, there is a long tradition of states and localities, often with the Supreme Court’s direct complicity, making facially neutral voting regulations diabolically effective barriers to voting. This extensive and tragic history made the federal Voting Rights Act of 1965 crucially important. “If a single statute represents the best of America,” as Justice Kagan wrote in her ringing (and stinging) Brnovich dissent, “it is the Voting Rights Act.” Yet it was Chief Justice Roberts’s dubious invalidation of that Act’s Section 5 preclearance provision in Shelby County v. Holder (2013) that Justice Ginsburg aptly likened to “throwing away your umbrella in a rainstorm because you are not getting wet.” And Shelby County cleared the path to acceptance of Arizona’s voting restrictions while ignoring Section 2’s command that courts consider the “totality of the circumstances.”

Close attention to Justice Alito’s majority opinion in Brnovich is particularly alarming. He set the tone with a phrase: “After all, every voting rule imposes a burden of some sort.” (In fact, he repeated the phrase “every voting rule imposes a burden of some sort” two more times, and buttressed it with similar phrases such as “usual burdens,” “unremarkable burdens,” and “modest burdens.”) The Court ultimately blessed the Arizona restrictions — a requirement that people vote in their own precincts, and a prohibition on delivery of “bundled” ballots — labeling them “facially neutral . . . regulations that have a long pedigree or are in widespread use in the United States.”

Never mind that Arizona simply destroys ballots cast in the wrong precincts, and makes no accommodation for many Native Americans who live on reservations and have no postal addresses or means to mail in their ballots.  Sadly, it is an inescapable reality that our nation’s “long pedigree” of “facially neutral” voting laws “in widespread use” included hundreds of laws whose implementation effectively denied millions of African-Americans, and others, the right to vote.

The Court’s July 1 invalidation of California’s disclosure requirement in Americans for Prosperity Foundation further underscores its propensity to subordinate reality to its own priorities, again camouflaged with the “burden” shibboleth. The right at issue was the First Amendment freedom of association, and the Court drew heavily on its precedents — which upheld suits that challenged fact-based threats to that right, successfully launched against implementation of apparently neutral state laws, such as the Alabama statute through which Alabama sought to obtain NAACP membership lists in the 1950s. By sharp contrast, in the California case two well-funded conservative advocacy organizations invited the Court to imagine possible burdens on their donors’ freedom of association rights. Paradoxically, after asserting that the Court need not look to “the severity of any demonstrated burden,” the Court declared simply that California’s disclosure rule “imposes a widespread burden on donors’ associational rights” — and struck it down.

In summary, the Court protected the rights of the wealthy to donate anonymously from a hypothetical burden, while Brnovich broadly signaled that the Court is likely to do to voting rights what it has done to abortion rights for nearly 30 years. By ignoring devastating history as well as relevant facts, the Court now is poised to allow state and local facially neutral burdens to pulverize the fundamental right to vote.

Aviam Soifer served 17 years as Dean of the William S. Richardson School of Law at the University of Hawai’i. He has been writing and teaching about constitutional law and legal history for over 40 years, often focusing on the post-Civil War period.