Justice Kagan Pens Fiery Dissent In Arizona Voting Rights Case

Justice Kagan Pens Fiery Dissent In Arizona Voting Rights Case

July 1, 2021

Justice Elena Kagan lashed out after the Supreme Court’s conservative members banded together on Thursday to uphold voting restrictions in Arizona that have been criticized for having a disproportionate effect on voters of color. 

“If a single statute represents the best of America, it is the Voting Rights Act,” Kagan began her 41-page dissent. “It marries two great ideals: democracy and racial equality. And it dedicates our country to carrying them out.” 

Yet she also noted: “If a single statute reminds us of the worst of America, it is the Voting Rights Act. Because it was ― and remains ― so necessary.”

The 6-3 ruling, written by Justice Samuel Alito, deals another blow to the 1965 Voting Rights Act, which was enacted to preserve voting rights for Black Americans amid the civil rights movement. Alito argued that Arizona’s voting restrictions were not in violation of the act’s Section 2, which specifically prohibits voting practices or procedures that discriminate on the basis of race.

One of Arizona’s new rules requires a voter’s full ballot to be tossed out if cast outside their local precinct, preventing that person’s voice from being heard in statewide or national contests if they make a mistake. The second restricts the practice of helping voters by collecting completed ballots and delivering them to precincts.  

Kagan said “few laws are more vital in the current moment” than the 1965 legislation and slammed the majority, writing that “in the last decade, this Court has treated no statute worse.”

The Supreme Court had already gutted key parts of the Voting Rights Act in 2013 by a 5-4 vote along ideological divides. At the time, Chief Justice John Roberts argued that “our country has changed” and the threat to minority voters was lessened, so the states should be free to change their voting laws without prior federal approval. 

The 2013 decision cleared the way for Republicans to launch an ongoing assault against voting rights protections ― which it has only ramped up since President Donald Trump’s 2020 election loss.

Writing on Thursday for the court’s dissenting liberals ― including Justices Stephen Breyer and Sonia Sotomayor ― Kagan expressed searing disapproval for the majority opinion, arguing that it will make American democracy less accessible to nonwhite voters.

“[E]fforts to suppress the minority vote continue. No one would know this from reading the majority opinion,” she said.

Kagan pointed out that since the Civil War, states have continually come up with new rules that are “mostly neutral on their face but discriminatory in operation, to keep minority voters from the polls” ― justifying the act’s “far-reaching goal” of ending such discrimination. 

“What is tragic here is that the Court has (yet again) rewritten — in order to weaken — a statute that stands as a monument to America’s greatness, and protects against its basest impulses,” she wrote. “What is tragic is that the Court has damaged a statute designed to bring about ‘the end of discrimination in voting.’ I respectfully dissent.”

Kagan neatly summarized what she thought of the majority’s argument, saying the court “undermine[d] Section 2 and the right it provides” by writing “its own set of rules” that allow discrimination.

In her powerful conclusion, she accused her six colleagues of gross judicial overreach:

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. It applies to any policy that “results in” disparate voting opportunities for minority citizens. It prohibits, without any need to show bad motive, even facially neutral laws that make voting harder for members of one race than of another, given their differing life circumstances. That is the expansive statute Congress wrote, and that our prior decisions have recognized. But the majority today lessens the law — cuts Section 2 down to its own preferred size. The majority creates a set of extra-textual exceptions and considerations to sap the Act’s strength, and to save laws like Arizona’s. 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 law that confronted one of this country’s most enduring wrongs; pledged to give every American, of every race, an equal chance to participate in our democracy; and now stands as the crucial tool to achieve that goal. That law, of all laws, deserves the sweep and power Congress gave it. That law, of all laws, should not be diminished by this Court.

According to the Brennan Center for Justice, Republican-led legislatures have passed 20 restrictive voting measures in 14 states as of May, with another 60 bills in progress. 

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