Law Week Colorado’s Supreme Court reporter Hank Lacey talked recently with Doug Spencer, a new addition to the University of Colorado Law School’s faculty, about the ongoing legal and political debates over voting rights in both the Supreme Court and Congress.
This is part two of the interview. In part one Spencer discussed the recent decision of the Supreme Court in Brnovich v. DNC. Here the conversation turns to a broader look at the Voting Rights Act.
The conversation has been edited to improve clarity.
Q: Does the 15th Amendment [to the U.S. Constitution] inform the way the court interprets the Voting Rights Act?
A: The interplay between section 2 and the 15th amendment has a very important and relevant history. When section 2 was initially passed in 1965, it [said that] you can’t deny or abridge people’s right to vote based on race. The Supreme Court said, “that looks a lot like the 15th Amendment, so we’re going to interpret that as a re-articulation of the 15th Amendment.” But the Supreme Court also said that when it comes to remediating harm under the 14th Amendment and the 15th Amendment, you have to prove that the discrimination was intentional. This comes from Washington v. Davis, which was a case about the 14th Amendment, and City of Mobile v. Bolden, which was a case about the 15th Amendment.
This is where the 1982 amendments [to the Voting Rights Act] come in. Congress, immediately after [City of] Mobile v. Bolden, said “no no, no! The Voting Rights Act is not a restatement of the 15th Amendment. It goes beyond the 15th Amendment. We want the courts to uphold the voting rights so much that the language was changed from “states can’t deny or abridge the right to vote” to “states can’t pass any laws which result in a denial of the right to vote.” It looked like what Congress was doing, if you really want to get into their intent, was establishing a disparate impact standard.
What [Justice] Alito point[ed] to [in the recent Brnovich v. Democratic National Committee decision] was that part of that amendment was language in the Voting Rights Act that says “when you’re trying to decide whether or not a state’s law has resulted in an abridgment of the right to vote, you need to look to see if the election is open to everybody.” He reads that line as saying, “as long as the law doesn’t target minority voters, as long as it’s ostensibly open to everybody, then the court should uphold those state laws even if they have a disproportionate negative impact on minority voters.”
Q: Is it fair to accuse the Supreme Court, going back to the [Reconstruction Era], of wrongly reading the 14th and 15th Amendments too narrowly?
A: Yes, I think that’s completely fair.
I think that is actually one of the most important fault lines in constitutional law today. The thing that separates constitutional law scholars and jurists, judges [and] lawyers is this very question about how broadly or narrowly the court is interpreting the 14th and 15th Amendments and, in particular, adopting “race blindness,” “neutrality” or “we don’t want people to be thinking about race or making decisions [based on race], whether or not their intent is to hurt or to harm.”
The problem, of course, is that for most of our country’s history we have [had] laws that harmed minorities and now you’re asking the states to be blind. That’s just going to continue to harm minorities. Essentially, by being blind to race, the judges are being blind to racism. So I’m of the view that the Supreme Court’s interpretation of the 14th and 15th Amendments is too narrow.
I also will say [that] I don’t think [conservative] opinion is radical. I think it’s a very rational and defensible position. I just personally disagree with it. Given the context of the world that we live in and the world that we aspire to be, I think the courts have a larger role to play. What Roberts [said] – this goes back to Rucho [v. Common Cause] – and what [Justice] Alito [said] is, “if you don’t like the laws then don’t run to the courts, run to the legislature.” The problem in my mind with that is the very laws that we’re talking about [reflect] flaws in the legislature. That may make sense if you’re worried about your contract rights or your property rights, but if you’re worried about your voting rights, it seems strange to me to tell you to use your voting rights to fix them, [since] you can’t [because they’re] abridged in some way.
It seems like at least the courts could have a more proactive role than they’re taking. Cynically, that would benefit a particular political party at the time – at this current time, the Democratic party – and the judges were appointed by Republican presidents. There is, [without] doubt, some partisan and ideological bent to their point of view.
Q: Is the Supreme Court’s view of the Voting Rights Act in the Brnovich case based on a realistic understanding of how American politics actually works?
A: No, I don’t think so.
I think the opinion in Shelby County suffered from the same flaw. [Chief Justice] Roberts said, “I’m not doing anything major. I’m only in conversation with Congress and they passed this law in 2006. I’m giving them some feedback that they didn’t do a good enough job, but don’t worry, they can fix it.”
They know Congress won’t do anything. They can hide behind that fact and make it seem as though what they’re doing is not nearly as devastating or extreme because, yes, in theory Congress or the states could step in and fix these problems. But they’re not.
In defense of Alito and Roberts, it’s not clear to me how much we want Supreme Court justices to be gaming out the system, to actually be aware that Democrats currently control Congress but might not in two or four years, then come up with the probability that the law will change and react accordingly.
At a baseline, I will say Sandra Day O’Connor was the last Supreme Court justice with any political experience. She was a state legislator and it came through in her opinions. She was very pragmatic. She understood what it took to run for office. She understood that we [do not] live in this “Mr. Smith Goes to Washington,” idealized version of American politics. She recognized that courts [have] a role to play in certain circumstances. We don’t have anyone on the court now who has been elected to any office and it shows.
Q: Do you think the Brnovich decision could add to the discord in the United States over voting rights or do you think it’s more likely the public will, by and large, shrug over it?
A: I think it depends on how Congress responds. There’s interesting timing here in that Congress is debating the John Lewis amendments to the Voting Rights Act. Those were really focused on resuscitating section 5 after Shelby County, but I can imagine right now the proponents of that bill are finding ways to expand, clarify or sharpen the language of section 2 to speak to the Brnovich opinion.
It’s hard to know whether this will make the country even more divided because it’s hard to imagine we can get more divided. I certainly think it plays into the divisions on voting rights that already exist. The conservatives have this view [that says] it’s okay if it’s difficult for minority voters to vote because at least we’re preventing some kind of nebulous fraud and Democrats argue that Republicans care only about suppressing the vote.
Q: Do you see any realistic likelihood that any voting rights bill could get through Congress?
A: I’m optimistic [that] the John Lewis amendments could [pass]. Until Shelby County, Republicans strongly supported minority voting rights and the Voting Rights Act. Those are the same people who are still in Congress – the Chuck Grassleys of the world who I still think have it in them to vote on a modest bill. The John Lewis Voting Rights Act amendments [are] the kind of thing that could get at least ten of the senators to overcome a filibuster.