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 high court’s July 1 decision in Brnovich v. Democratic National Committee. In that case the justices upheld two Arizona voting laws and, for the first time, established a standard of proof requirement for claims brought under section 2 of the Voting Rights Act.
Spencer, a constitutional law scholar who is an expert on campaign finance and voting rights, was a faculty fellow at CU’s Byron R. White Center for the Study of American Constitutional Law during the 2020-2021 academic year. He comes to CU Law School from the University of Connecticut Law School, where he was a faculty member since 2013. Spencer has also been a visiting professor at Yale Law School and at the University of Chicago’s Harris School of Public Policy.
Before entering academia, Spencer was a law clerk at the Lawyers’ Committee for Civil Rights, an election monitor for the Asian Network for Free Elections and a researcher for the Pew Center on the States’ Military and Overseas Voting Reform Project. He holds a Ph.D. in jurisprudence and social policy, a law degree and a master’s degree in public policy from the University of California at Berkeley. He earned his undergraduate degree in philosophy from Columbia University.
The conversation is edited to improve clarity.
Q: What do you think of the Supreme Court’s Voting Rights Act decision in the Brnovich v. DNC case?
A: I’m disappointed, but I’m not surprised.
Q: Will the decision have a significant practical impact on whether state voting laws can be invalidated?
A: It has a huge impact.
[Justice Samuel] Alito, for the first time, gives us a test that will guide future litigation. That’s good because at least there’s some guidance. In the past, we’ve been trying to import [from] redistricting cases to guide our thoughts.
The disappointing part is that the guide that’s been provided is odd. And also the bar has been set pretty high. Two things that really stand out to me are, one, a state doesn’t really have to show that a law is achieving a particular interest. It just has to articulate an important interest. I think every state is going to be able to articulate the interest. Unless it’s pretextual, straight-up, there’s a lot of deference now given to state legislators and all they’re doing.
The other thing that I find a bit bizarre is that [Justice] Alito focuses on the 1982 amendments and decides that 1982 should become our baseline year of comparison. Going forward, if you feel like your voting rights are being infringed, a judge should ask, “well, how does this infringement compare to what you were able to do in 1982?” If we were to roll back mail-in voting, a court would say, “you still have it better than you did in 1982, so you should stop complaining.”
Q: Why 1982?
A: Congress amended the language of Section 2 of the VRA in 1982. According to [Justice] Alito, when Congress said that elections should be “open for all,” that really meant open to all according to what they understood to be [required for] an election in 1982.
Q: But not everybody in Congress in 1982 would have had the same idea, right?
A: This is always a tension in all textualist readings. You’re ascribing a motive to a group. There’s a famous academic article, I think, that says Congress is a “they” [and] not an “it.” Anytime you’re looking toward the will of Congress or the will of the state legislature, you are looking at the final product of a messy situation and you’re making a determination that they must have meant these things. And that’s why I think textualism has become so controversial.
Q: How might states that desire to restrict voting take advantage of this ruling to continue on a policy course that would accomplish that?
A: Essentially, all they have to do is just not give any clues that they’re aware of any racial disparity and just say “election fraud, election fraud, election fraud.” [Justice] Alito said [that] preventing wage fraud is the state interest that would clearly justify making all kinds of burdens on the right to vote. He said that’s a completely fair thing for states to be worried about. As long as the judge thinks that you believe that, then you’re fine.
The problem with that, of course, is [that] more and more state legislators are deluding themselves into this conspiracy [theory] that there’s fraud that’s systematic across the country. I have no doubt that they actually believe it, but it doesn’t exist. [Justice] Alito was not attuned to that nuance. He just said, “if I think the legislature believes there’s fraud and that’s their motivating reason, then it’s going to be okay.”
Q: Congress believed, when it last updated and reauthorized the Voting Rights Act in 2006, that racial prejudice in voting rules actually existed. The Supreme Court said, in its 2013 decision in Shelby County v. Holder, that even if Congress really thought that, they were wrong and, on that basis, essentially invalidated section 5 of the VRA. Are the justices now reversing themselves on that way of using Congress’ understanding?
A: I’m even more cynical on this point because in [Chief Justice] John Roberts’ majority opinion in Shelby County, he [basically] said “everybody who reads this opinion [and] who’s going to freak out needs to take a deep breath because we’re not eviscerating the Voting Rights Act. Section 2 still exists, so you’re just fine.” Not only are they now using kind of an inconsistent logic, but they’re eliminating the very thing that they said justified the rolling back of section 5 in Shelby County.
I heard Nina Totenberg on NPR call section 2 a “dead letter.” I don’t think it’s a dead letter, but I think that it’s going to be extraordinarily difficult for plaintiffs to prove that a law is discriminating based on race because the Supreme Court has just shown that they are going to be extremely deferential to a state [that] has passed th[e] law.
Q: Where does the Supreme Court get the power to read these requirements or exclusions into the Voting Rights Act?
A: I think there are two sides of this coin.
On the one hand, the authority really does rest in Congress and what [Justice] Alito is doing today was not articulating, necessarily, a vision about constitutional rights. He was interpreting a statute. So if Congress were to pass a law that was much more forceful and much more expansive and, dare I say, progressive on expanding voting rights, then the court would be beholden to enforce that statute.
Congress could respond [to the Brnovich decision]. I read [Justice] Kagan’s dissent as really speaking to Congress and providing them [with] a path forward or a road map.
On the other hand, the Supreme Court has a very narrow view about minority protections in this country and discrimination [and] this goes beyond voting. One of the arguments put forward in this case is [that] we should approach voting the exact same way we do other kinds of discrimination, like in housing and employment, and we should think about disparate impact standards and shifting burdens of responsibility. Alito flat-out says, “why would we endorse other views of minority protections for elections?”
The view is very widespread among conservative jurists that the government shouldn’t be in the business of remediating harms based on race. And so they’re interpreting these statutes as narrowly as possible. We see this time and time again. [The Brnovich decision] is just the most recent articulation.
NOTE: This interview continues in part two, where we discussed larger trends in the interpretation of the Voting Rights Act.