How the Supreme Court threw the Biden administration’s ramped-up voting rights agenda off the rails

• The Supreme Court just threw the Biden admin's voting rights agenda off the rails.
• The Court made it harder for plaintiffs to prove discrimination under the Voting Rights Act.
• It also causes a quagmire for the Department of Justice's voting rights lawsuits.
• See more stories on Insider's business page.

Shortly after the Supreme Court handed down its decision in a major voting case Thursday, election law scholar Rick Hasen wrote that "the conservative Supreme Court has taken away all the major available tools for going after voting restrictions" – and it couldn't come at a worse time for the Biden administration.

Following public criticism from advocacy groups and even some Democratic lawmakers directed at the White House for not taking a stronger and more urgent stance on voting rights, President Joe Biden is pledging to "go on the road" and speak "extensively" on voting rights while Vice President Kamala Harris takes the lead on the administration's voting rights push in Congress.

Voting rights advocates hoping for more concrete action, including through lawsuits over restrictive voting laws passed in GOP-controlled states, were dealt a major setback on Thursday with a consequential decision from the Supreme Court that throws their plans off the rails.

In Democratic National Committee v. Brnovich, the court ruled 6-3 to uphold two Arizona voting laws under Section 2 of the Voting Rights Act, with the majority opinion authored by Justice Samuel Alito setting new standards that will likely take a lot of force out of the law, designed to protect minority voters from voting discrimination nationwide and particularly in states with long histories of racist voter suppression.

It follows the Court's 2013 decision in Shelby County v. Holder, where the Court neutered another key component of the Voting Rights Act that required some jurisdictions to seek federal approval before enacting new voting policies.

A case brought by Democrats led to the Court curtailing voting rights law.

Democrats sued Arizona in 2016 claiming that a law throwing out ballots cast in the precinct and a law making it a felony to return another person's mail ballot (in most cases) both violate Section 2 and that the ballot collection ban was enacted with discriminatory intent.

The Democrats lost at the district court level and with a panel of the 9th Circuit, but won when the full 9th Circuit heard the case en banc, leading Republicans to appeal to the Supreme Court.

The majority reversed the 9th Circuit's rulings and set five new "guideposts" that far more narrowly interpret the law in favor of states, raise the bar for plaintiffs to show discriminatory impact, and close the door to a lot of potential challenges to recently-passed laws.

The majority opinion narrowly interprets the broadly phrased language in Section 2 to stipulate that plaintiffs should prove that the law in question imposes difficulties beyond "the usual burdens" of voting.

The majority also said that challengers of such laws must prove a significantly large discriminatory effect, stating that "mere inconvenience" does not make for a Section 2 violation and "small disparities" in voting access "should not be artificially magnified."

The opinion further stipulated that individual voting rules shouldn't be considered on their own, but weighed in the context of how easy it is to vote overall in a given state. The majority also placed greater weight on the state's interest in preemptively preventing voter fraud or voter intimidation, a new standard that would certainly advantage GOP state legislatures defending new rules.

And, somewhat out of left field, the opinion said that courts should give more consideration to whether laws in question "have a long pedigree," and consider the US' voting laws in place in 1982 as a "benchmark" to assess how "equal and open" today's election laws are compared to when the Senate reauthorized Section 2 in 1982.

A court taking into account how a law differs from the status quo in the 80s would certainly change the calculus in voting rights cases, given that very few states offered early voting, no-excuse absentee voting, or things like automatic or same-day registration at all in that time.

"It is hard to see what laws would be so burdensome that they would flunk the majority's lax test," Hasen wrote in The New York Times, "as long as there are still some opportunities for minority citizens to vote - somewhere, somehow."

The DOJ's job just got harder.

Section 2 lawsuits were never easy endeavors in the first place. And the new guideposts laid out in the Court's opinion are a huge win for the GOP-controlled legislatures passing new voting laws, create even more of an uphill battle for advocates to win the Section 2 cases already in the pipeline, and raise the risk of bringing more cases that could result in further gutting of federal civil rights laws.

This poses a significant quagmire for the Department of Justice, too (which, notably, did not dispute the Trump DOJ's position that the two Arizona voting laws did not violate Section 2).

Under the leadership of AG Merrick Garland and Assistant AG for Civil Rights Kristen Clarke, the civil rights division is literally redoubling its voting rights efforts, adding twice the staff to its voting rights section and re-committing to both suing over discriminatory voting laws and investigating partisan ballot recounts.

But the Supreme Court's decision threatens to completely blow up their first voting rights enforcement suit against Georgia's omnibus election law, Senate Bill 202, under Section 2 of the VRA, which includes a challenge to a provision that will toss out wrong-precinct provisional ballots cast before 5 pm, a rule not identical but similar to Arizona's law.

Not only did the Supreme Court uphold Arizona's out-of-precinct policy, but the majority made it harder to prove that a legislature enacted a law with discriminatory intent, as the DOJ is aiming to do in Georgia. The majority ruled that the Court's "cat's paw doctrine", which the 9th Circuit used to assign discriminatory intent to the Arizona legislature, shouldn't be applied to legislative bodies at all.

As far as civil rights law goes, the DOJ is now even more limited. And looking forward, the Brnovich decision may also make some attorneys both within and outside the federal government think twice before bringing federal cases that could receive an unfriendly reception at the conservative Supreme Court and result in voting rights laws being further watered down.

In a February post for SCOTUSBlog, Hasen criticized the Brnovich lawsuit as a "partisan overreach" and warned that overly aggressive litigation, especially one in a direct partisan faceoff with Democrats on one side and Republicans on the other, could blow up in voting rights advocates' faces.

Top Democratic election lawyer Marc Elias, who represented the DNC in the Brnovich case, argued in a Thursday statement that advocates still have the 14th and 15th Amendments to the Constitution, as well as state laws and constitutions, under which to challenge voting laws.

But given that Congress enacted the Voting Rights Act and Section 2 specifically under its prerogative to enforce the 14th and 15th Amendments, the Court's decision in Brnovich is still a major blow to those constitutional protections being carried out in practice - and will require many attorneys and advocates to go back to the drawing board.