0:00:00.1 S?: We will hear argument this morning in case number 19-1257, Brnovich v. Democratic National Committee, and the consolidated case.

[music]

0:00:13.0 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter and Rhiannon are talking about Brnovich v. Democratic National Committee. This is a recent case brought by the Democratic Party against the State of Arizona in response to a voting law passed earlier this year. Democrats said the law discriminated against minorities, exactly what the Voting Rights Act was meant to prevent when it was passed in 1965.

0:00:39.8 S?: That voting discrimination remained a clear and present danger to the political aspirations of Black and Brown America.

0:00:47.6 Leon: The Supreme Court ruled in favor of Arizona, continuing its pattern of weakening the Voting Rights Act. This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:03.0 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that are decimating our civil liberties, like positive marijuana tests have decimated the US Olympic team.

0:01:12.3 Rhiannon: Oh, God.

0:01:13.8 Peter: I am Peter, and I'm here with Rhiannon.

0:01:16.2 Rhiannon: Hey. You know, I would love to report that over our little two-week break, that I was cool, calm, collected, not as stressed as usual, less workload, I'm not podcasting with you freaks day in and day out, and yet, here we are. I'm exhausted. I have, we could only describe as, barely read the case we are discussing today. And, yeah, how was your vacation, Peter?

0:01:45.2 Peter: I feel rejuvenated, top of the world, read the case multiple times, I'm ready to get it.

0:01:52.0 Rhiannon: We should probably say that Michael is not here.

0:01:54.4 Peter: Yeah, it's just us today.

0:01:55.6 Rhiannon: Just Peter and Rhi-rhi.

0:01:56.5 Peter: Which, by the way, I think we've done it before, it went great.

[laughter]

0:02:00.6 Rhiannon: Yeah, I think we'll be alright. Michael, we miss you, but I think we'll be okay, Peter.

0:02:04.9 Peter: I'm confident. Today's case is Brnovich v. Democratic National Committee. This is a case about voting rights. Arizona has a couple of laws that restrict certain voting practices. Specifically, the state banned the practice of ballot-harvesting, which is when a person or a group of people collect other people's ballots and hand them in for them, and also out-of-precinct voting, which is when someone hands their ballot in at the wrong precinct. And the Democratic National Committee sued, claiming that these laws violated the Voting Rights Act. The Voting Rights Act makes it illegal for voting restrictions to discriminate on the basis of race, and the DNC said, "Hey, these are disproportionately impacting minority voters."

0:02:51.1 Rhiannon: That's right, yeah.

0:02:51.8 Peter: But the Court, in a 6-3 decision written by Justice Samuel Alito, upholds those laws, saying that they are not discriminatory under the Voting Rights Act. In doing so, the Court lays out a set of guidelines for interpreting the Voting Rights Act that throttles the ability of anyone to bring lawsuits for racial discrimination in voting. Now, we've covered voting rights before, and, in fact, last year, we did a whole episode on voting rights. So it's not news to our listeners that this Court, conservative legal institutions generally, and the Republican Party are dedicated to limiting voting rights in this country. So today we want to dig in a little bit, cover first exactly where this case fits into that scheme, and then take a step back and talk about the ways in which this Court is harkening back to the legal regime of the segregation era.

0:03:47.5 Rhiannon: Yes.

0:03:48.9 Peter: So, Rhi, dive in with some background. Let's go.

0:03:52.5 Rhiannon: Yeah, let's talk a little bit about what state laws were being scrutinized here. So, we heard Peter say that the case is called Brnovich v. Democratic National Committee, that's because this case comes out of a lawsuit filed by the DNC. They're challenging two Arizona state laws regarding voting. We, I think, should pause here, because I feel like my home state, Texas, gets a lot of hate, a lot of public derision for always sending some wild shit to the Supreme Court, and I think we've been sleeping, as a podcast, as a society, on how absurd the state of Arizona is. Historically, there are wild cases out of Arizona that get to the Supreme Court. We've actually covered a couple of them already on the podcast. We did Tison v. Arizona, which established that you can be executed under the felony murder rule. There's the Arizona Free Enterprise case about public funding for political campaigns. Miranda, that's a case from Arizona, that's a good one, but it's from Arizona.

0:04:57.9 Peter: And you got Sheriff Joe, when you step outside of the Supreme Court context.

0:05:02.1 Rhiannon: That's right.

0:05:03.6 Peter: There's some characters out there.

0:05:05.3 Rhiannon: Yeah, that's right. Anyways, here's another one. In this case, the DNC is suing because Arizona passed two laws about voting that the DNC was challenging as being unconstitutional and a violation of the Voting Rights Act. Listeners should know the Voting Rights Act passed in the 1960s, sort of on the tail-end of the civil rights movement, incredibly important law. The first law that's being challenged by the DNC was one that Arizona had had actually for a long time since the 1970s, and that law was regarding voting outside of a voter's assigned precinct. The law required voting officials to throw out ballots that are cast in the wrong precinct, and none of the votes on those incorrectly cast ballots are counted, even votes that are being cast for state-wide or federal races.

0:05:58.8 Peter: Right. If you go one precinct over to the wrong precinct, that shouldn't result in your vote for a president or a senator or a governor getting thrown out, 'cause those races are the same from one precinct to another.

0:06:10.3 Rhiannon: Yeah. Important to note here, in some places in Arizona, a voter's assigned precinct, where they are supposed to turn in their ballot, isn't the precinct that's actually literally closest to their home, so ballots cast in the wrong precinct do happen, right? The second law is one that the Republican-led Arizona legislature passed in 2016, which made it a felony to do ballot collection or ballot-harvesting, as Peter said at the beginning. And that's where someone might collect more than one early ballot, they're collecting, say, all of their family's early ballots, or you could collect all of the early ballots of your co-workers in the office, and you turn them in on everybody's behalf. Republicans lie all the time and say that so-called ballot-harvesting encourages voter fraud. I think we're gonna talk about that a little bit, but those are the two laws that the DNC is challenging here and saying, "Hey, these violate the VRA, the Voting Rights Act."

0:07:09.8 Peter: Right. So first, I want to talk a little bit about the Voting Rights Act. The Voting Rights Act is initially passed in 1965, but the relevant portion of it is actually an amendment passed in 1982 that allows folks to sue states for voting discrimination and do so under what's called a disparate impact theory, which is basically saying, "Hey, this disproportionately impacts minorities, therefore it violates the Voting Rights Act."

0:07:37.0 Rhiannon: Right.

0:07:37.3 Peter: As opposed to suing because something is intended as racist, right? This is about the impact rather than the intention.

0:07:44.3 Rhiannon: Right.

0:07:44.7 Peter: So, when this is initially proposed, the GOP is very opposed to it. Then candidate, I believe, Ronald Reagan, comes out saying that it's designed as a humiliation of the South, and they hate this shit, right?

0:07:57.4 Rhiannon: Right.

0:07:57.5 Peter: They see that the Southern states, that the Republicans are courting at this time, are gonna be impacted by it. But they end up running a little bit scared, saying they don't want to be branded as racist, and they sort of back off. And over time, it becomes fairly uncontroversial, to the point where the reauthorization ends up, in 2006, being passed in the Senate by a vote of, I believe it was 96 or 98-0. Very uncontroversial until recently, when voting rights have become sort of central to the fight between Democrats and Republicans, especially as Republicans lose their grasp on the electorate, at large.

0:08:39.1 Peter: So, the legal question here is whether these laws in Arizona violate Section 2 of the Voting Rights Act, and the legal rule is whether the law, quote, "results in a denial or abridgment of the right of any citizen of the United States to vote on account of race." Again, the issue isn't whether these laws are intended to be racist, it's whether they disproportionately impact people based on race.

0:09:02.9 Rhiannon: Right.

0:09:03.2 Peter: We're at a time in the early '80s where the rhetorical strategy of racists in government is shifting...

0:09:09.9 Rhiannon: Exactly.

0:09:10.6 Peter: From saying it out loud to keeping it a little on the DL.

0:09:14.5 Rhiannon: Yeah. The point is that a law that is explicitly intended to be racist is going to be obviously unconstitutional on its face. The problem is that lawmakers, state lawmakers, especially in the South, know how to not be explicitly sort of anti-Black when they're drafting legislation, but the impact, they know that the impact of the voting restrictions they're putting in place are going to lead to less minority turnout in elections.

0:09:45.4 Peter: And the reason that these laws are a problem, from a racial discrimination perspective, is because many of these logistical, mechanical, procedural impediments to voting fall disproportionately on poorer communities, and poorer communities in this country, and in Arizona specifically, tend to be communities of color. In Arizona, we're talking about Native American communities, Hispanic communities, and Black communities. Right?

0:10:09.5 Rhiannon: Right. One statistic that struck me in this case, part of the record in the lower court, was that only 18% of American Indian voters have home mail service, right? And so if you add to that a lack of transportation, if you live in a more rural community, you're just compounding the problems with access to the polls.

0:10:30.5 Peter: And I do want to flag the fact that plenty of these laws are just very directly targeted at minority communities and practices that are common in minority communities. Ballot-harvesting is something that is practiced much more often in Black communities than it is elsewhere, especially where a lot of voting revolves around churches and people collecting ballots at churches in certain communities. That practice is something that is very overtly demonized in conservative media, and these laws are targeting that to a large degree. These aren't meant to be targeting just anyone who might be ballot-harvesting. This isn't a coincidence here.

0:11:10.4 Rhiannon: Exactly.

0:11:11.2 Peter: So, a quick summary of this holding, the decision is basically two parts. First, Alito lists what he calls guide posts for analyzing voting discrimination claims. And then in the second part, he applies those guide posts to the exact situation in Arizona. And by the way, he specifically is like, "This is not a legal test. These are just guide posts," which I found to be just weird and weaselly, 'cause what's the difference between guidelines and a legal test, right?

0:11:42.8 Rhiannon: Yeah.

0:11:43.4 Peter: They're really just the same thing. But what he is trying to do, I think, is be like, "Look, don't hold me to this." He knows that it's not particularly coherent or simple to apply, so he's like, "Well, let's not call it a test, that sounds like a little too formal. Let's call them guide posts."

0:11:59.7 Rhiannon: Right. Yeah, he's being a stupid little worm. This is like vibes justicing. He's not sort of grounding his legal argument in, like, "This is the objective test, this is what courts should be using moving forward to determine whether restrictions on voting violate the Voting Rights Act or not." He's like, "These are just the things I'm thinking about, purposely big."

0:12:20.4 Peter: Yeah. Here are five vibes for you to check, and then you can uphold the voting restriction. First, let's go through these guide posts. [chuckle] These are again just sort of factors that Alito believes should be considered in determining whether a voting restriction is illegal under the Voting Rights Act. He lays out five of them. The first four we'll talk about are, I think, theoretically reasonable, but the way that Alito describes them is pretty concerning. The last one we'll cover is just truly insane, top to bottom, but first things first.

[chuckle]

0:12:55.9 Rhiannon: Yeah, yeah. The first guide post that little baby bitch Alito, that little baby bitch Alito notes is...

0:13:04.8 Peter: You've tripped yourself up with alliteration, "little baby bitch."

[laughter]

0:13:11.5 Rhiannon: The first guide post that little baby bitch Alito notes is, first, he says, "The size of the burden imposed on the voter by a suspect law is a relevant factor." Okay, so that makes perfect sense, of course, right? If we're analyzing whether under the Voting Rights Act a voting restriction is illegal, then you need to take into account what burden is actually imposed on a voter. But what he does next is sort of downplay all the various potential burdens that are imposed on voting. He says, for example, okay, the one law in Arizona bans out of precinct voting, and Alito just brushes it off as, like, "This isn't a burden at all. Just because somebody might have to look up where their correct precinct is, that doesn't impose a huge burden." Right?

0:14:02.1 Rhiannon: What Alito fails to do in each of these guide posts, really, when he identifies the guide post and then applies it to the facts at hand, to the law in Arizona, what he fails to do is actually scrutinize the impact on the ground. He's not engaging with what this actually means for, say, a minority voter in Arizona when their assigned precinct might be confusing or further away than a precinct that's closer to them. So he just kind of brushes it aside as, like, "To me, this isn't a big deal." And this is something we talk about a lot, right? This is Alito looking at a statutory scheme and thinking very obviously, like, "How would this burden me personally," and making that calculation and thinking, "Oh, that's not a big deal at all, because that wouldn't be hard for me personally." But that situation could be very different from thousands or millions of people on the ground in Arizona who live very different lives than Samuel Alito does.

0:15:05.1 Peter: Yeah, right. So, the next guide post is that he says the size of the racial disparity caused by the voting restrictions should be a factor. Again, sensible on its face, but then he says something very telling. Here's a quote, "To the extent that minority and non-minority groups differ with respect to employment, wealth and education, even neutral regulations, no matter how crafted, may well result in some predictable disparities in rates of voting and non-compliance with voting rules." Which is a weird thing to say, because he's basically saying, "Well, this isn't a violation of the Voting Rights Act. It's simply the manifestation of systemic discrimination against minorities."

0:15:49.1 Rhiannon: Right, right. Yes.

0:15:50.2 Peter: But I think what he's really saying is just, "Well, this is their fault." Right?

0:15:55.8 Rhiannon: Right.

0:15:56.2 Peter: "They're poorer than white people, they're less educated, and these are the wages. This is how it goes." This is like that longstanding conservative position that's always lurking, and we've talked about it before. They know these disparities exist, they just don't think it's a problem because they view it as organic, they view it as a natural product of certain people being maybe a little less, whatever, intelligent or ambitious or whatever than others, right?

0:16:26.0 Rhiannon: Yeah, that's exactly right. He also says that we should evaluate the overall level of opportunity afforded to voters, so you should take into account that if a state offers multiple different ways to vote, then that should be factored in. Just unpacking this a little bit, he's saying, "If you can cast your early ballot in one way, in your precinct, or you can cast your ballot on the day of, on election day, these are all different ways that you can vote, and so maybe the burden of these restrictions isn't actually so high, maybe it's okay." Here's the problem, though. That's just looking at, again, a sort of bird's-eye view level of all of the opportunities afforded to voters in Arizona by law, but it's not actually scrutinizing how the burdens fall disproportionately on different groups. Are all of these ways of voting equally accessible to all minority groups as they are to white people, right?

0:17:27.1 Peter: Right.

0:17:27.5 Rhiannon: That's the question that Alito fails to engage with. If we're talking about... An example that comes to mind is just like, if you're looking at whether there is racism in hiring, you wouldn't just say, "Well, minorities are allowed to apply to all kinds of different jobs." Right? That doesn't solve the problem.

0:17:48.6 Peter: Right. You can't forgive discrimination at Walmart 'cause Target's hiring.

0:17:52.4 Rhiannon: That's right, exactly. Yeah. Okay, the next guide post that Alito identifies is we should consider the strength of the state interest being served by the restriction, by the restriction in voting. He specifically says, "Well, what's important here is the prevention of voter fraud." Arizona is ostensibly interested in limiting voter fraud, and that state interest is an important one. And he says, "Fraud can impact close elections, and it can also impact voter confidence in the process." Yeah. That, to me, sounds a little bit familiar.

0:18:31.7 Peter: I have a comparison to make.

0:18:32.6 Rhiannon: Yeah.

0:18:33.2 Peter: In our second episode, we talked... Which was Citizens United, Anthony Kennedy wrote about corruption in the political process. He said, "The perception of corruption doesn't matter. The only thing that matters is whether there's actual corruption." Right?

0:18:48.6 Rhiannon: Right.

0:18:49.1 Peter: Because what people were arguing was that money in the political process impacts people's confidence in the political process. And the conservatives said, "No, no, no. Perception doesn't matter." And yet here, here all of a sudden, it matters again when it comes to voter fraud, which is verifiably a fake thing, that they are way too concerned about. That's when the perception matters. Interesting, very interesting how these things go.

0:19:14.9 Rhiannon: Yeah. And just noting for later, too, this emphasis in this guide post of Alito's, this emphasis on the state interest being important, right?

0:19:23.5 Peter: Yeah.

0:19:23.8 Rhiannon: You're not going back to, say, the text of the Voting Rights Act and pointing out that the state interest served in a voting restriction is not one of the things stated as something to consider when determining if voting restriction is illegal or not, right?

0:19:40.3 Peter: It's nowhere in the Constitution, it's nowhere in the law.

0:19:42.7 Rhiannon: That's exactly right. And so this is just pure, on its face, state's rights rhetoric in the decision.

0:19:49.5 Peter: Yeah. So the most bizarre factor that Alito lists, this was actually the second guide post, but I saved it for last because it's juicy.

0:20:00.6 Rhiannon: It's a good one.

0:20:01.5 Peter: Alito says that because the law was passed in 1982, if a voting restriction was being practiced in 1982, then it presumably would not violate the Voting Rights Act, which I don't even know what to say about this one. The entire point of the Voting Rights Act and the 1982 amendment was that there were too many discriminatory voting restrictions in 1982, and so Congress had to pass a federal law. If all of the restrictions in place in 1982 were fine under the Voting Rights Act, then why would they have needed to pass the Voting Rights Act?

0:20:43.1 Rhiannon: Exactly.

0:20:43.9 Peter: What he's trying to say is we should not be beholden to modern 2021 standards of what is or is not a racist voting restriction, because the Voting Rights Act was passed in 1982, and we should be trying to figure out what they thought was a racist voting restriction, because you're trying to manifest that law. And there's some merit to that, if that's your method of statutory interpretation, if you don't believe that they should evolve, but the fact that something existed in 1982 does not mean that the federal Congress approved of it. To the contrary, the federal Congress passed a federal law to try to clamp down on this shit.

0:21:20.5 Rhiannon: He's being real stupid.

0:21:23.8 Peter: It's just clown shit. Clown shit.

0:21:24.5 Rhiannon: It's clown shit. And it sounds so stupid when you say it, Peter, and maybe people won't believe us, and that is what fucking Samuel Alito wrote, right? Yeah, he is saying that voting restrictions that existed in 1982 must be fine now, and it just doesn't make sense.

0:21:44.3 Peter: Yeah, it was one of those things that when the opinion came down, but before I read it, I saw this circulating on Twitter and I was like, "I bet it's more complicated than that," but no.

0:21:54.4 Rhiannon: When you told me, you read the case before me, when you told me, I was like, "No, for sure, it's more complicated than that," and it's not.

0:22:02.2 Peter: I would also like to put out there another fun piece of conservative jurisprudential trivia. In Shelby County v. Holder, the government had this formula developed in 1982 for the Voting Rights Act for determining which states should be subject to additional federal oversight in their voting rights laws, right? And the conservatives in Shelby County struck that down, claiming that the federal government can't base their system on formulas developed in 1982, because it was too long ago to be meaningful. And yet here we have Sam Alito saying that actually the law as it was in 1982 is very instructive for evaluating modern voting restrictions. Interesting dichotomy there. Almost like they're just throwing shit at the wall, depending on what helps their conclusion the most.

0:22:51.2 Rhiannon: Yeah, there is no other explanation of how hypocritical this is, right. It's that boldly stupid. Okay, so after he kinda goes through his dumb guide posts, there's also this really long interim portion of the majority opinion, where Alito just sort of scolds Justice Kagan who writes the dissent in this case, he's scolding her for talking about the historical context of the Voting Rights Act.

0:23:17.1 Peter: Alito's whole opinion has sort of like a doth protest too much aspect to it there, he is talking about the dissent, constantly.

0:23:24.4 Rhiannon: Totally.

0:23:26.7 Peter: Constantly reacting to the dissent's critiques of him.

0:23:28.7 Rhiannon: Yeah, he's being super petty, like you can really feel his anger in the majority opinion when he's talking about the dissent. He calls the dissent, quote, "a radical project." He says the dissent, quote, "strains mightily to obscure its objective," end quote, so implying heavily that the dissent is lying, right, and then he says, quote, "the dissent provides historical background that all Americans should remember, but that background does not tell us how to decide these cases."

0:24:00.2 Peter: I feel like he's doing the same thing that all conservatives do, where they demonize their enemy so much that it becomes inherently absurd, like mainstream conservatives just think that like Joe Biden's a communist. This is the legal version of that, where you think that Elena Kagan is part of some radical left-wing project.

0:24:18.4 Rhiannon: How do you talk about the problems that this law was designed to solve, right.

0:24:24.7 Peter: It really just goes to show how far afield conservative legal academia is of like how a normal human being would think about stuff like this, and the sort of analytical framework that they have normalized in their minds, where all of a sudden they're just astonished that someone would use the historical context of the law to understand it. So that brings us to the second part of the opinion, where he is applying those aforementioned guide posts to the actual laws in Arizona, and of course, he says that if you apply those principles, that he just made up, the Arizona laws do not violate the Voting Rights Act.

0:25:06.0 Rhiannon: So he says, quote, "In the 2016 general election, a little over 1% of Hispanic voters, 1% of African American voters, and 1% of Native American voters who voted on election day cast an out of precinct ballet. For non-minority voters, the rate was around 0.5%. A policy that appears to work for 98% or more of voters to whom it applies, minority and non-minority alike, is unlikely to render a system unequally open," end quote. Like without any other context, yeah, those numbers are close together, 0.5 and 1, but another way of looking at that is that the out-of-precincts accidental ballet casting is double the amount for minority voters than it is for white voters. These laws are still suspect under the analysis that he's giving us.

0:26:03.1 Peter: A little bit questionable. Do people ever say quesh, like they say suss?

0:26:09.3 Rhiannon: Quesh. Quesh is better than suss.

0:26:10.2 Peter: Quesh is suss without the homophobic undertones. We're actually not saying suss anymore, we're saying quesh.

0:26:15.3 Rhiannon: Right, right.

0:26:18.7 Peter: And then concerning ballot-harvesting, which again is the practice of having a third party gather ballots and hand them in for you, he says, quote, "Limiting the classes of persons who may handle early ballots to those less likely to have ulterior motives deters potential fraud and improves voter confidence."

0:26:36.7 Rhiannon: Well, well, well.

0:26:39.7 Peter: People with ulterior motives, like, what the fuck are you talking about? Is there any evidence on the record about any of this shit? No, no, if there is, he certainly doesn't mention it. The Court is just laundering, like fringe January 6 level voter fraud fears, right, expressly granting them legitimacy by claiming that they are an important state interest, when the state has offered really next to nothing to show that there is any meaningful fraud committed through these practices. All of the available data shows that the idea of widespread fraud is a conservative media fiction, but here we are having it repeated back to us at the United States Supreme Court. It's just wild. And by the way, if there was like a significant rate of fraud in a single state, God, they would be blasting that shit on Fox News, you would know.

0:27:26.6 Rhiannon: Of course they would, of course they would. In fact, it's not sort of just like this high-level conspiracy theory, there are facts in this case that showed that the conservative rumor mill of voter fraud was inaccurate and hyperbolic. In Arizona, a lower court said that there was a video evidence of somebody collecting ballots and then maybe casting the ballots. A lower court in this case said that what Republican lawmakers and the Republican governor in Arizona were saying that video showed was actually completely inaccurate, that there was no sort of nefarious ballot-harvesting going on in any of the evidence that they had.

0:28:11.6 Peter: God, the fucking voter fraud thing. It's gonna be the thing that kills me. It's never gonna go away.

0:28:15.5 Rhiannon: Well, they know that, they can say it.

0:28:17.0 Peter: No, it's true. I mean...

0:28:18.1 Rhiannon: They know that it's a forever thing, they can just stoke fear about the same thing forever.

0:28:24.2 Peter: Exactly. So I want to take a step back and just talk about where this case fits in, like the 150-year post-Civil War neo-Confederate project, because this holding an illegal regime that it represents, harkens back to long-standing conservative legal and academic notions of states' rights and the states' rights to be free of interference from the federal government. They would claim that states' rights and local governance are sort of inherently democratic in that they reflect the political preferences of a more localized population when compared to the federal government. In reality, the belief in states' rights is distinct and distinguishable from a belief in actual democracy, and quite ironically, this rhetoric has long been a conservative strategy for preserving anti-democratic institutions for at the very least the past 70 to 80 years.

0:29:18.3 Rhiannon: That's right.

0:29:19.2 Peter: Conservatives believe in a very strong government, of course, you can see it in obvious places like the demand for strong and aggressive police, but you can see it here too, in the restrictions of voting by the states. They're not concerned with human freedom from the state per se, but the freedom of powerful state and local institutions to operate without interference from the federal state, which they view as sort of excessively susceptible to cosmopolitan and progressive political pressures, right.

0:29:50.0 Peter: Like the whole don't tread on me thing has obviously been more than a little cynical and opportunistic. So they would claim that the Voting Rights Act is a law passed by a very distant and out-of-touch federal government, and that it's more democratic, therefore, to defer to state laws. But the irony is that the entire purpose of these state voting laws is to make those localities less reflective of the political preferences of their actual population by limiting the ability of certain chunks of that population to meaningfully participate in the political process.

0:30:26.3 Rhiannon: That's right.

0:30:27.6 Peter: That's what necessitates federal intervention on behalf of those disenfranchised people.

0:30:33.0 Rhiannon: That's right.

0:30:34.6 Peter: The Court is saying, Well, this matter should be left to the states, not the federal government, right. And we saw the same reasoning a couple of years back in Rucho v. Common Cause, which upheld political gerrymandering. But that reasoning has a natural flaw. It's easy to say, let the states decide how they should vote, but that's sort of like a rhetorical sleight of hand, because the real question is, who is the state? Is the state the state government itself, or is it the actual population of the state?

0:31:03.4 Peter: Conservatives have long enjoyed framing these states' rights debates as if they are about democracy and local control over government. In other words, they'll say like, who knows what's best for Arizona, the federal government or Arizona? And that might seem like an appealing argument on the surface, but it's concealing the true question at hand, which is who controls Arizona, who is allowed to have input into how Arizona is run and who can be excluded? That's what this fight is about when you peel back all the bullshit.

0:31:34.5 Rhiannon: Yeah, and what this fight is about is a fight that goes back a long time, right? Peter, you just said it's 150 years since the Civil War ended, just a little bit less since the Reconstruction Amendments, the Thirteenth, Fourteenth, Fifteenth Amendments were passed. Just over 50 years or whatever since the Voting Rights Act was passed. And I think what people kind of fail to see in these voting rights Supreme Court cases, or I guess just in general in what the Supreme Court does day-to-day, is that when conservatives are in control of the Supreme Court, this fight is continuing. The fight over who gets to participate in democracy, who gets to participate in electing representatives, who is a part of civil society, and conservatives still in 2021 are waging a war with the aim of reproducing a hierarchy in which white people have that power.

0:32:32.6 Peter: Right, right.

0:32:34.6 Rhiannon: That kind of through line, that theme that is with us all the way since the Civil War, you can see that in Supreme Court cases after the Reconstruction Amendments. So in the early 1900s, the Supreme Court is deciding voting rights cases, and there are such similarities in those cases with the Brnovich decision that we're talking about today. For example, in 1903, the Supreme Court hands down a case called Giles v. Harris, and in that case, the Supreme Court upheld a system in Alabama, a law in Alabama under which white voters in Alabama were automatically registered to vote, and they were also grandfathered in for lifetime registration under certain circumstances, whereas black people were not automatically registered, they would have to jump through a bunch of hoops and proactively get themselves registered, whereas white people were automatically registered.

0:33:29.9 Rhiannon: The Supreme Court in that case, this is after the passage of the Thirteenth, Fourteenth and Fifteenth Amendments, the Supreme Court upheld that Alabama law, and in that case is talking very similarly to how Alito is talking in Brnovich about states' rights. The issue in that case that the Supreme Court is concerned with is whether the federal government can strike down something that Alabama is saying is best for their population. In another case, Breedlove v. Suttles, this is a little bit later in the 20th century in 1937. This is a case now overturned, but the Supreme Court at that time upheld a poll tax, upheld a system of having poll taxes, this time in Georgia; again, same reasoning.

0:34:18.5 Rhiannon: Georgia is deciding what's best for people who live in Georgia, and it is not the role of the federal government, of the federal Supreme Court to come in and strike those laws down. And so just to highlight that, if you go back and read those cases, cases that were written by Oliver Wendell Holmes, esteemed Supreme Court Justice, right, from the early 20th century, very, very similar language and similar reasoning to what Alito is spewing today to uphold voting restrictions in Arizona.

0:34:53.0 Peter: Yeah, I think that's a great point. And to be clear, for all the conservative talk of strictly construing the Constitution, nothing in the Constitution mandates that states have this power to pass voting restrictions. The Fifteenth Amendment is explicitly about protecting voting rights and fighting racial discrimination via federal legislation. The Fifteenth Amendment has two parts. The first says the government cannot discriminate on the basis of race in voting, and the second says that Congress shall have the power to enforce this article by appropriate legislation. That's an express grant of authority to the Federal government, and that's extremely rare in the Constitution.

0:35:30.8 Peter: There aren't many things the federal government is expressly empowered to do in the Constitution, coining money, regulating commerce, raising an army, establishing the post office. And then this. I mean, that's basically it. You have the Constitution saying that the federal government can pass laws to protect voting rights. And here it is, the Voting Rights Act. They did it. And here you have the Court interfering with that very explicit constitutional right. In Shelby County v. Holder, John Roberts said his holding was based on, quote, "the principle that all states enjoy equal sovereignty," but that is not a principle that is actually in the Constitution. This shit is just the conservative is replacing actual constitutional principles that they don't like with fake shit that they do like.

0:36:20.5 Rhiannon: Yeah, that's exactly right.

0:36:21.4 Peter: It's one of those situations where when conservatives talk about liberal judicial activism, and I point to Roe v. Wade or whatever, they will not ever address the shit that they have done with respect to voting rights, which is some of the most direct disobedience of constitutional mandates that you'll ever see.

0:36:42.7 Rhiannon: Right, right. And sort of belies their commitment to textualism, to reading the Constitution as it's written, to originalism, reading the Constitution in the way that somebody at the time it's passed would have understood it. The Fifteenth Amendment is extremely clear. It says the federal government has this power, and the conservatives on the Supreme Court today don't like that. And so textualism, originalism be damned. That's not what they're going with. And you know, this whole discussion, when you're thinking about how this silly case makes it to the Supreme Court so that Alito can shit all over the Voting Rights Act, it brings us back, as a lot of these stories do, to the incompetence right now of the Democratic Party.

0:37:32.1 Peter: Controversial.

0:37:34.6 Rhiannon: We mentioned up top that this case is called Brnovich v. Democratic National Committee, the DNC, the party itself is the one who brought this lawsuit, takes it, appeals it all the way up to the Supreme Court, and you kind of have to ask like why. It's a six Justice super majority of conservatives. What did you think was going to happen? So they're not just kind of fumbling the ball on the litigation front with choosing the cases that they bring and when, but also, right at the same time, we know that they're fumbling the ball, passing any legislation that would fix the Voting Rights Act at this time. It's really nonsensical, you just wonder, what the fuck are you guys doing?

0:38:25.1 Peter: They were like, we are gonna use the best logic and the best reason, and we're gonna take this all the way up to the Court, and they're gonna agree with us because we are the best lawyers.

0:38:34.3 Rhiannon: Yeah. Even after 2013, and we got Shelby County v. Holder, we know that John Roberts is ready and willing to gut the Voting Rights Act, right? We're gonna bring another one, baby, and this time for sure it's gonna go our way.

0:38:47.8 Peter: Yeah, and look, these are out of precinct voting, ballot-harvesting, these are very gray areas. I'm not gonna sit here and tell you that this is like open and shut under the law or whatever, there's no precedent for this, you're wading into completely untread and you expect the conservatives to side with you on it? For what reason? It really is genuinely baffling to me, and it is the product of a party that is so wedded to institutional legitimacy that they will just fucking walk into the creature's mouth and let it chew them up. It's fucking insane.

0:39:31.4 Rhiannon: Yeah. And you know, another thing that this case gave the conservatives on the Supreme Court the chance to do was kind of muddy the water with that distinction that we were talking about up top, which is the disproportionate impact of a law on minorities versus the discriminatory intent of a law, a racist intent. So Alito throughout this opinion is sort of saying, he doesn't say explicitly, right, that these laws in Arizona are not passed with racist intent, but his heavy implication is that there's no problem with these laws in Arizona because they weren't passed with racist intent, right?

0:40:12.1 Rhiannon: He's sort of doing away with the disproportionate impact, he's not paying attention to the reality on the ground for minority voters in Arizona and how these laws specifically overburden them versus white voters in Arizona, he's kind of washing his hands of that analysis altogether and comes to the conclusion like, all this is above board, all this is fine, there's no explicit racism here. And again, just want to emphasize that the point of the 1982 amendments being passed was to say that the impact, regardless of whether there was explicit racism in passing the law, the impact is what's important and should be scrutinized under the Voting Rights Act.

0:40:56.1 Peter: Yeah, so we're left with a situation, because conservatives in the courts have been, really, for many years trying to knee-cap the idea of proving racist intent, right? It's not just about in the courts, it's something that they use in their rhetoric, like, well, is that really racist? It's not explicitly racist, right? The only thing that they will accept as racist as like express racial slurs, right.

0:41:19.4 Rhiannon: Right, right. Yeah.

0:41:20.2 Peter: And even then, you'll see doubts, like no joke. So they've been watering that down both as a sort of rhetorical strategy, and you see it in law, you see it in how they interpreted Title 7, you see it in how they interpret all sorts of laws that impact discrimination on the basis of race. And so they've been watering that down for years, and that has left us really only with this disparate impact theory, the idea that these laws might disproportionately impact people of a certain race, and now they're knee-capping that too. And I think it's important to note that, that it leaves us with very few avenues for trying to attack racist voting laws.

0:41:58.1 Rhiannon: Yes.

0:41:59.8 Peter: So I talked a lot about the return to the old states' rights regime, but as we wrap up, I want to clarify a bit. For large and powerful segments of the GOP, their support for democracy is at most nominal or aesthetic. For someone like Donald Trump, democracy is good to the extent that it validates his belief that he is good.

0:42:24.6 Rhiannon: That's right.

0:42:25.3 Peter: And to the extent that it doesn't is unjust or malfunctioning. But the more academic branches of the conservative movement aren't much better. Yes, they are returning to a states' rights rhetorical strategy, but this isn't really about states' rights, because conservatives don't have a coherent theory of state versus federal power. When the right cannot get adequate levels of fascism from the federal government, they will pursue more localized versions of fascism. That said, they're happy to rely on the federal government where they can, right, which we saw under Trump with respect to immigration, etcetera, and we see with respect to the military.

0:43:00.9 Rhiannon: Absolutely.

0:43:03.9 Peter: And the other side of that is that the conservative relationship with many local government institutions has always been historically quite adversarial. Think about public schools, for example, or big city governments. They aren't following a consistent set of academic rules or frameworks for when state or local government is good versus bad. If you're a conservative, the question isn't whether the state versus the city or the federal government should be in control of a certain issue. The question is just, who should be in control? And the answer for conservatives, and more specifically for fascists, is us. Everything else, the Constitution, the statutory tax, the law's purpose, the legislative history, everything else is ancillary and can be justified later, that's the defining quality of fascism.

0:43:53.4 Peter: And if and when you see the modern American right descend further into fascism, that will increasingly become the only identifiable feature of their ideology. And I think you see that happening more and more now, where the only thing that really makes sense of their positions, is is it happening to me? Yes or no. And they decide whether it's good from there.

0:44:13.0 Rhiannon: That's exactly right, yeah. And that's what we mean when we're talking about often like a results-oriented analysis or conclusion first, and then the justification comes later. They're doing this kind of across the board, and it just means that whatever the justification, whatever the argument, they don't care, as long as the result is that they maintain sort of racial hegemony across the board.

0:44:38.4 Peter: Yeah, well, you might be the vanguard of fascistic behavior as the screaming NewsMax crowd, right, saying that every aspect of the election is unjust, and every aspect of society is oppressing them, from local schools pushing critical race theory to Twitter banning their accounts.

0:44:58.6 Rhiannon: Taxes.

0:44:59.8 Peter: They're the vanguard. Far more essential is the underlying institutional apparatus provided by the Supreme Court, which gives them the academic and institutional legitimacy that fascism needs to survive. They're just flailing around on social media, starting their own little Fox offshoots that get increasingly insane.

0:45:22.1 Rhiannon: Losing voters.

0:45:23.2 Peter: Right, losing voters. They need the Supreme Court giving this an institutional seal of approval for any of that to work, for any of that to work. And that is what the Supreme Court is doing.

0:45:32.9 Rhiannon: Yeah, the Supreme Court is the institution that tells fascists, yes, continue, because the law says it's so, right?

0:45:38.6 Peter: Right. Next week, another case from the end of this term, Americans for Prosperity Foundation v. Bonta, where the Court struck down a California law that required wealthy donors who were splashing money around to do various evil deeds to disclose their names to the public. The Court said no, they actually have a constitutional right to remain anonymous, so that's great.

0:46:13.4 Peter: Follow us on Twitter @fivefourpod, hit up our Patreon, and subscribe for premium episodes like our tour de force on the legal media. Patreon.com/fivefourpod, all spelled out. We'll see you next week.

0:46:28.4 Rhiannon: Bye.

0:46:30.8 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Rachel Ward, with editorial support from Leon Nayfakh and Andrew Parsons. Our production manager is Percia Verlin. Artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.