On the Road Again: How Brnovich Steers States Toward Increased Voter Restrictions

Kaitlin Barnes

For nearly fifty years, the Voting Rights Act of 1965 (“VRA”) protected American elections. For nearly fifty years, America had a system in place to eliminate existing tools of voter discrimination and prevent new barriers from being erected. And for nearly fifty years, the VRA worked as intended. America has never treated its citizens truly equally, but the VRA was an effective attempt at leveling the playing field in an arena in which so much power is vested: the political process.

After the VRA’s passage, registration and turnout rates for voters of color in the South skyrocketed. Discrimination did not disappear overnight, as states were increasingly creative in developing new ways to suppress voters of color. But the VRA was designed to catch these attempts, and it usually did. With each VRA reauthorization, Congress tweaked what was not working, and kept what was. As a result, our country seemed to be moving towards a political process that was slowly but surely becoming equally accessible to all voters.

But America’s dedication to voting rights did not last forever. In Shelby County v. Holder, the Supreme Court put America back on the road to voter suppression by striking down the VRA’s most effective provision, which required certain states to receive federal approval before changing their voting laws. Predictably, states that had been prevented by the VRA from passing restrictive voting legislation rushed to enact laws that made it more difficult for voters of color to cast a ballot. The Court’s most recent voting rights decision, Brnovich v. Democratic National Committee, weakened the VRA’s most important remaining provision, Section 2, which broadly prohibits discriminatory voting practices. By ignoring the factors established in Thornburg v. Gingles that governed Section 2 claims for years, Brnovich makes it significantly harder for plaintiffs to successfully challenge voting laws under Section 2.

The Brnovich Court also recognized the prevention of voter fraud as a “strong and entirely legitimate” interest that could justify passing a law that may place additional burdens on voters. This recognition gives states the green light to pass restrictive voting legislation under the guise of preventing voter fraud. It also suggests that the Court’s decision-making process was not grounded in reality, as voter fraud is incredibly rare and does not impact the outcome of American elections.

Part I of this Comment will discuss America’s simultaneously tragic and triumphant history of voting rights. It will examine the conditions that led to the passage of the VRA and describe how the Court upheld the legislation against constitutional attacks. Part I will also explore the Court’s approach to interpreting the VRA in Shelby County and Brnovich. Finally, Part I will survey the voting legislation that has been proposed by state legislatures and Congress.

Part II of this Comment will argue that the Court’s most recent voting rights decision, Brnovich v. Democratic National Committee, weakens the VRA—and by extension the right to vote—even further. First, Part II will explain how the Brnovich Court improperly ignored its precedent in two other VRA cases. Next, Part II will show why the Court’s recognition of a “voter fraud” state interest is so concerning. Finally, Part II will identify the John Lewis Voting Rights Advancement Act as the law best poised to address the Court’s concerns about the VRA’s constitutionality. By restoring the VRA and updating its provisions to apply to all states, this Act is a course correction that will prevent our country from continuing down the path of increased voter restrictions.