Justice Alito Eviscerates Voting Rights Act With Masterclass Of Sophistry

Want to completely rewrite a statute? Here you go!

(Photo by Chip Somodevilla/Getty Images)

There’s a reason that the word “sophistry” is generally preceded by the word “empty” in common parlance. The ancient school of thought is remembered these days for elevating style — through semantic games, logical fallacies, or outright trickery — over substance.

And it’s a worldview put on full display at the Supreme Court this morning in Brnovich v. DNC, as Justice Alito took a sledgehammer to what remains of the Voting Rights Act in the aftermath of Shelby County.

Despite some wishful thinking that dragging out this opinion hinted at Alito’s opinion falling apart at the last minute, the six Republican-appointed justices duly lined up to take a swing at the VRA. If there were any behind-the-scenes quibbles at the last minute it would have been to fend off possible concurrences that might weaken Alito’s assault on the law. As it was, the conservatives didn’t waiver from the majority, leaving only a short statement from Justices Gorsuch and Thomas questioning whether or not there’s a private right of action to enforce voting rights at all. Alito didn’t say the VRA is non-existent, but functionally it’s hard to tell what’s left.

The Arizona laws at issue involved limiting voters to casting their ballots at their assigned polling place — a restriction designed to burden working voters in low wage jobs who may not have the luxury of being at home during election hours. The second was a rule allowing individuals other than the voter’s family to collect early ballots. While chain of custody issues gave rise to one of the exceptionally rare real voter frauds out there, the logic of allowing someone to collect ballots is to make sure more people are able to exercise their right to vote.

One can quibble over whether or not these are sound regulations. They seem far more likely to suppress voting than prevent actual fraud and seem purposely designed to disproportionately suppress turnout by voters of color specifically. This is the Supreme Court, so the facts of the specific case don’t matter as much as what the justices decided to do after taking the ball and running with it. And Alito was ready to dash to the GOP endzone.

Section 2(b) states that §2 is violated only where “the political processes leading to nomination or election” are not “equally open to participation” by members of the relevant protected group “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.”

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Indeed. It seems as though laws designed to curb minority participation would fall into that language. But don’t worry, here comes TWO PARAGRAPHS of random — literally RANDOM HOUSE — definitions to rewrite that, taking “equally” and “open” and “in that” and “opportunity” before beginning the next paragraph with “Putting these terms together,” to create a Frankendefinition dripping with all the tactics of Orewellian Newspeak. Alito rewrites the section to create new rules that transform the statute from a shield against voting rights abuses to a machete for state legislatures to wield in pruning the cornerstone of democracy.

1. …. The concepts of “open[ness]” and “opportunity” connote the absence of obstacles and burdens that block or seriously hinder voting, and therefore the size of the burden imposed by a voting rule is important….

2. …. the degree to which a voting rule departs from what was standard practice when §2 was amended in 1982 is a relevant consideration.

3. …. 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.

4. …. where a State provides multiple ways to vote, any burden imposed on voters who choose one of the available options cannot be evaluated without also taking into account the other available means.

5. …. every voting rule imposes a burden of some sort, and therefore, in determining “based on the totality of circumstances” whether a rule goes too far, it is important to consider the reason for the rule.

It may not look like much, but with some word game fun, a law created to stand vigilantly skeptical of laws imposing barriers on specific demographics of voters is transformed into “restrictions are presumptively legal if the state claims that it burdens minority voters ‘in the interest of preventing fraud.'” Orwell has already shown up in this article and while, as a writer, I hate going to that well all the time, this SCOTUS-approved listicle does feel like rewriting half a century of civil rights law to say “but some are more equal than others.”

To the extent that minority and non-minority groups differ with respect to employment, wealth, and education, even neutral regulations, no matter how crafted, may well result in some predictable disparities in rates of voting and noncompliance with voting rules….

There’s a lot of attention around “critical race theory” these days and it’s mostly a catch-all term for “not saying white people are awesome” but this is an actual example of where critical race theory would fit in. Where “neutral” is set to exclude “employment, wealth, and education” it’s being set to guarantee the scales are tipped and to suggest otherwise is just being deliberately obtuse about the state of… everything in this country in 2021. But deliberately obtuse is a core facet of the voting rights assault.

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And so we come to the money quote:

Section 2 does not require a State to show that its chosen policy is absolutely necessary or that a less restrictive means would not adequately serve the State’s objectives.

Claim fraud. Don’t bother proving it. Don’t worry if the remedy is intentionally more restrictive than required. Make sure there’s some alternative voting method… like opening one booth from 1 p.m. to 1:15 p.m. in downtown Phoenix, and you’re good to go.

Justice Kagan, in dissent, delivers an incisive recap of the majority’s contempt for Congress:

The Court always says that it must interpret a statute according to its text—that it has no warrant to override congressional choices. But the majority today flouts those choices with abandon. The language of Section 2 is as broad as broad can be…. No matter what Congress wanted, the majority has other ideas.

This Court has no right to remake Section 2. Maybe some think that vote suppression is a relic of history—and so the need for a potent Section 2 has come and gone…. But Congress gets to make that call. Because it has not done so, this Court’s duty is to apply the law as it is written.

The threat to democracy posed by the Supreme Court at this juncture is palpable. Unelected, life-tenured jurists — the majority appointed by presidents who entered office having lost the popular vote — have rewritten a duly enacted law for the express purpose of limiting the franchise. Congress is a dysfunctional sideshow and the Supreme Court is apparently eager to rewrite legislation to enshrine their right-wing impulses knowing that Congress is incapable of passing legislation to counter the Court’s word games.

There’s a romanticism for the Supreme Court among lawyers, but this opinion indicates that it is an institution at best dangerously ill-fitted for our times and at worst fundamentally broken.

The Sophists have won. It’s all just mummery at this point.


HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.