The Equal Democracy Project at Harvard Law School

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Court Decisions

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A Primer on Brnovich v. DNC: The Supreme Court’s Latest Voting Rights Case

 

By Omeed Alerasool | March 7, 2021

 

Described as the Supreme Court’s “chance to diminish the Voting Rights Act,” Brnovich v. Democratic National Committee was argued in front of the high court’s Justices on Tuesday, March 2, 2021.

WHAT IS THIS CASE ABOUT?

Brnovich involves two electoral policies in Arizona, enacted by Republicans ostensibly to promote election security. Voting rights advocates argue that these laws have the effect of denying minority voters the opportunity to vote.

The first is a ban on third-party ballot collection (referred to as “ballot harvesting” by its critics), which effectively prohibits third-party collection and delivery of voters’ absentee ballots with limited exceptions. Opponents of this law point to its especially detrimental effect on Native American voters, many of whom do not have access to reliable mail services in rural Arizona.

The second policy at issue invalidates ballots cast in the wrong precinct, even if those ballots include votes for statewide races in which all Arizonans choose among the same candidates regardless of precinct location. Challengers of this policy contend that, combined with Arizona’s tendency to frequently change precinct locations, it disproportionately impacts Latino and other minority voters in Arizona.

In 2016, the Democratic National Committee (DNC) and the Arizona Democratic Party challenged these two policies under Section 2 of the Voting Rights Act (VRA), which prohibits any “standard, practice, or procedure . . . which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”

At trial, in 2018, the District Court for the District of Arizona ruled against the DNC and in favor of the defendants. On an en banc (full court) appeal in the Ninth Circuit, however, the DNC prevailed in January 2020.

WHY DOES THIS CASE MATTER?

The VRA was passed by Congress in 1965 during the Civil Rights Movement, and subsequently renewed in 1970, 1975, 1982, 1992, and 2006. Until 2013’s Supreme Court decision in Shelby County v. Holder, the VRA’s most powerful tool was Section 5. Under Section 5, policies such as those at issue here would need to be “precleared” by the U.S. Department of Justice or the D.C. federal district court. Section 5 applied to states with a history of discrimination, and, in fact, Arizona’s ballot collection ban failed to obtain preclearance when it was first proposed by the state legislature in 2011. In 2013, the Supreme Court delivered its Shelby County decision, which invalidated the formula that determined which jurisdictions were subject to Section 5 preclearance requirements, effectively striking down the most effective tool against racially discriminatory election practices.

Until this point, Section 2 had primarily been used in the redistricting context to combat “vote dilution” using a standard of application developed by the Supreme Court’s Thornburg v. Gingles decision in 1986. After the loss of Section 5, however, voting rights advocates have explored Section 2’s application to vote denial, in order to potentially fill (at least part of) the void left by Shelby County. While vote dilution has had standards for courts to apply when reviewing such claims, the Supreme Court has yet to provide standards for identifying and applying Section 2 in the vote denial context. Enter: Brnovich.

Both sides in Brnovich propose their own versions of a vote denial test—that is, standards by which courts should assess whether an election policy denies the right to vote on the basis of race in violation of Section 2. The respondents essentially propose versions of the test used by the Ninth Circuit, which struck down the two policies after finding that they created a racially disparate impact on voters in light of the “totality of the circumstances” in Arizona. The petitioners propose stricter tests which require challengers to meet a higher bar before a court could invalidate a policy, including proving a substantial racial disparity and evaluating the impact in light of alternative voting options available to affected voters. Among the many third parties (amici) submitting their ideas to the Supreme Court, Harvard Law School’s Nicholas Stephanopoulos proposed a test that would apply similar standards as those used in other anti-discrimination contexts, such as Title VII. (Justice Breyer appeared to prefer Prof. Stephanopoulos’ proposal at oral argument.)

Potential standards aside, the current Supreme Court’s 6-3 conservative tilt has also raised concerns that the entirety of Section 2 could be neutralized under an argument that application of the law in the manner used here is not permitted under the Fifteenth Amendment of the U.S. Constitution, which served as the justification for Congress’ enactment of the VRA.

WHAT HAPPENED AT ORAL ARGUMENT?

Four advocates argued the case to the nine Justices over the phone for two hours. Notably, no questions were raised about the constitutionality of Section 2, as the argument mostly focused on potential standards of application, as well as on Arizona’s state interests in administering and protecting its elections and the standing of the parties to raise these issues to the Supreme Court.

First, Michael Carvin argued for the private petitioners (the Arizona Republican Party). In response to several hypotheticals posed by Justice Kagan, Carvin appeared to contradict his side’s written briefs at times, conceding that there are circumstances in which “time, manner, and place” election regulations could produce impermissibly disparate impacts across racial lines. (Justice Kavanaugh later called him out on the apparent contradiction.) Most notably, in response to a question from Justice Barrett regarding the Arizona Republican Party’s standing to raise the case to the Supreme Court, Carvin effectively argued that allowing more people to vote by invalidating the policies at issue would hurt Republican chances of winning elections. (“[I]t puts us at a competitive disadvantage relative to Democrats. Politics is a zero sum game.”) Carvin was followed by Mark Brnovich, the Attorney General of Arizona and the named petitioner, who argued for the petitioners’ stricter version of a vote denial test and in favor of his state’s ability to regulate elections and “monitor for fraud.” He argued that the impact of the policies at issue here were not substantial enough to demonstrate legal discrimination.

Counsel for respondents included Jessica Amunson, representing Arizona’s Democratic Secretary of State, Katie Hobbs, and Bruce Spiva, representing the DNC. Both Amunson and Spiva fielded questions about voter fraud, election security, and on the scope of allegedly sweeping scope of their proposed standards. Amunson argued that the standards proposed by the petitioners were too inflexible to fulfill the mandate of Section 2. She dismissed petitioners’ contention that a more flexible test would result in all sorts of election regulations facing judicial scrutiny. Notably, in response to questions from Chief Justice Roberts on “ballot harvesting,” Amunson rejected the characterization of respondents’ test as pursuing “racial proportionality” and cited Roberts’ own words in the campaign finance context in arguing that courts should be particularly skeptical of reviewing policies which purportedly respond to yet unproven risks of fraud. Spiva echoed Amunson in asserting that the ballot collection ban could not have been motivated by anti-fraud concerns. He defended the DNC’s decision to challenge the out-of-precinct policy rather than the frequent changing of precinct locations, describing it as the “but-for cause” of the disenfranchisement of minority voters. Spiva closed with a reference to Shelby County, where Roberts wrote of Section 2 as a remaining nationwide ban on voting discrimination, and which was followed by more voting restrictions being enacted across the country than at any time since the end of Jim Crow.

For a complete transcript and audio recording of the oral argument, see here.

WHAT ARE THE POSSIBLE OUTCOMES?

While it seems unlikely that the entirety of Section 2 will be stripped of its power, it remains likely that the vote denial test ultimately adopted by the Supreme Court will be one that is quite strict. Even if a more favorable test (from the respondents’ perspective) is adopted, Arizona’s two policies are likely to be saved by the Court. In other words, even if the Court adopts standards for vote denial that future plaintiffs could find workable, it will probably also conclude that the DNC claim here against Arizona’s two policies fails to meet those new standards.

Looking at the nine members of the Court, the three liberal-leaning Justices (Breyer, Sotomayor, and Kagan) will probably support the respondents’ position. Meanwhile, Justices Thomas, Alito, and Gorsuch seem likely to take the strongest stance against the DNC’s position. The Justices to watch will be Chief Justice Roberts and the newest members, Justices Kavanaugh and Barrett. Roberts wrote the Shelby County decision, but that decision also referenced Section 2 as a remaining tool for voting rights advocates, and he may hesitate to make too dramatic a move. Kavanaugh and Barrett may be open to a somewhat more favorable result for the respondents, though where they ultimately land on the matter remains to be seen.

Given the number of proposed legal standards and issues at play, perhaps the Supreme Court will surprise everyone and decide the issue on standing grounds, punting the issue of Section 2 vote denial for another day (in the spirit of 2018’s Gill v. Whitford decision involving partisan gerrymandering, which was followed by 2019’s Rucho v. Common Cause).

And, notably, there are immediate political implications that add to what is already a complicated situation. For one, a decision resulting in a severely strict vote denial test, or a gutting of Section 2 in general, could serve as the final straw that breaks the filibuster in the U.S. Senate. With Democrats already pushing for major pro-democracy reforms, an adverse decision might be enough to give proposals such as H.R. 1 enough impetus to pass the Senate.

Ultimately, the Supreme Court’s decision, and its impact on voting rights and democracy, will be clear later this year.

 

Omeed Alerasool is Chief of Staff of the Equal Democracy Project and a 2L at Harvard Law School. He also serves as Editor-in-Chief of the Harvard Human Rights Journal. Omeed’s commentary on government, democracy, and foreign policy has appeared in HuffPost, Diplomatic Courier, and other outlets. Follow on Twitter: @OmeedAlerasool

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Lessons from Election Litigation in the COVID-19 Era

By Irfan Mahmud | November 15, 2020

 

In this heavily litigious election year, courts throughout the country have been frequently ruling on election law challenges. As state legislatures and courts worked in tandem to make voting more accessible during the unique context of a pandemic, friction resulted over the role of the courts in election law. Courts determine the constitutionality of election regulations by weighing the burden such regulations place on voters against the state interests they advance. Lower courts have generally been convinced by the weight of the practical burdens voters would face during a global pandemic to rule in favor of making the franchise accessible. By contrast, the Supreme Court and some appellate courts have weighed abstract state interests advanced by state actors, e.g., protecting against voter fraud or confusion, more heavily in this inquiry, ruling against judicial changes to election laws. 

As a result of this rift in approach between lower and higher courts, litigators will need to craft convincing arguments going forward that both take advantage of lower courts’ sympathy for making voting accessible, while also catering to the Supreme Court’s sometimes dispositive consideration of states’ interests.

Two seminal Supreme Court cases established the balancing framework that is currently used to assess the constitutionality of election regulations that could burden the right to vote. The doctrine that was first formulated in Anderson v. Celebrezze (1983) and reiterated and clarified in Burdick v. Takyushi (1992) (“Anderson–Burdick”) applies a flexible standard to determine what degree of scrutiny a court should give an election regulation based on the law’s burden on the right to vote weighed against state interests advanced by the law: the more burdensome a regulation, the more compelling a state’s interest must be to justify the regulation.

Recent lower court cases have demonstrated an inclination for courts to use Anderson–Burdick jurisprudence as a tool to remove burdensome requirements for absentee voting during COVID-19, such as witness or notary requirements. However, the newly solidly conservative Supreme Court bench believes otherwise. The high court has sided with conservative litigators in deferring to state interests – relying on the so-called Purcell doctrine – and viewing, as a result, the authority of the courts to intervene in matters of state law as limited.

The Court invokes the Purcell doctrine separately – but not totally independently – from Anderson-Burdick. This doctrine was announced in Purcell v. Gonzalez (2006) and reaffirmed this year in Republican National Committee v. Democratic National Committee (2020). The Purcell principle states that courts should refrain from changing election regulations close to an election. While doctrinally distinct from Anderson-Burdick, the Purcell doctrine itself also relies on the consideration of abstract state interests – primarily the objective of avoiding voter confusion. In practice, it has served as a judicial backstop to the liberalization of election laws, and has not necessarily succeeded in its objectives: appellate courts reversing lower court election law rulings even closer to the election serves to only sow more confusion (as demonstrated, for example, by the recent decision in South Carolina). 

As predicted by their concern for voter burdens, lower courts have pushed back on the use of Purcell. For instance, in People First of Alabama v. Secretary of State of Alabama (2020) the Eleventh Circuit explicitly limits the scope of Purcell, stating that “Purcell is not a magic wand that defendants can wave to make any unconstitutional election restriction disappear so long as an impending election exists.” The Purcell doctrine will be less relevant – and Anderson-Burdick a truer balancing – when laws are changed farther in advance of an election. However, in this election, as states changed laws in response to unpredictable and unprecedented circumstances, Purcell has had a powerful influence.

While the Supreme Court has not yet substantively engaged with the lower courts’ application of the Anderson-Burdick balancing test, the dissent to a Fourth Circuit order to rehear en banc a refusal to remove absentee ballot witness requirements is more illuminating. Though the Circuit Judges in that case, Middleton v. Andino (2020), invoke the same arguments the Supreme Court does, they make an effort to make concrete the state interests and diminish the practical voter burdens. They point to the state interest of voter fraud, which they call “indisputably” a “compelling interest,” and offer examples of how that is a concrete interest, pointing to a recent election in neighboring North Carolina that was overturned due to absentee ballot fraud. Likewise, they spend considerable time downplaying the practical burdens of witness requirements on the voters even during COVID-19. This in-depth analysis shows that even those conservative jurists in appellate courts who tend to agree with the Supreme Court’s reasoning have responded to the trend in the lower courts by concretizing the state interests (in this case, fraud) and weighing them more heavily.

One of the few cases in which the Supreme Court has sided with the lower courts is Republican National Committee v. Common Cause Rhode Island (2020). In this case, the original parties, Common Cause Rhode Island and the Rhode Island Secretary of State Nellie Gorbea, stipulated to a consent decree in which Gorbea agreed to suspend witness requirements for absentee ballots. In an appeal brought by the Republican National Committee (RNC), as intervenors, challenging the decree, the First Circuit denied their requested stay, relying on the Anderson-Burdick framework to show that witness requirements are overly burdensome on voters during the pandemic. The Supreme Court agreed with the First Circuit in denying the RNC’s emergency application for stay because elected state officials did not support the RNC’s position to stay the district court ruling. It seems that the Court will at least require some showing from state officials that they themselves wish to keep the state election laws in place in order to side with the abstract state interest in Anderson-Burdick balancing. 

Now that the 2020 General Election has concluded,  it is a time for reflection on this election year that set records for both the highest number of lawsuits and highest number of voters. As legislators and litigators gear up to improve the electoral system in response to this year’s challenges, the courts will have more power to rule without the precondition for the Purcell doctrine – the closeness of the election – looming so near at hand. 

Litigators in the voting rights space should capitalize on this willingness at the lower court level to prioritize accessibility and a growing effort by higher courts to identify concrete interests. The courts have shown an openness to accepting specific voter burdens, as evidenced by data, against abstract state interests, which frequently have no basis in evidence. In crafting their arguments, litigators must present data and show how in application, the election regulations result in voter disenfranchisement – and how can that truly serve a state interest? 

There’s at least one positive from the jumble of election law cases decided before the 2020 election: evidence. Going forward, litigators will be able to use data from the 2020 elections themselves, and the vast records amassed during all the related litigation (pre- and post-voting), to help debunk some of the state interests, such as voter fraud, typically advanced in election litigation. They can show, for example, that when voting is more accessible and more ballots are cast, there is no uptick in fraud. 

Ultimately, once the dust settles on the 2020 election and the accompanying litigation, the fight to protect the fundamental right to vote will continue accommodating the judicial positions encountered this year. As a consequence, litigators must also continue to preempt state defenses on the grounds of maintaining fair elections, voter integrity, and voting undiluted by unqualified voters by showing that those concerns are not rooted in actual consequences of expanded voter access. They must engage with the likely challenges that will come from the Supreme Court and invent clever ways to engage with the Purcell doctrine and other arguments that conservative litigators will use to persuade the Supreme Court and like-minded judges in the circuit and district courts. Only through this push and pull will the fundamental exercise of the franchise truly be free and open to all.

Irfan Mahmud is a 2L at Harvard Law School who is interested in political law and invested in protecting the fundamental right to vote in the U.S.

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Courts of Appeals Limit Drop Boxes in Battleground States

By Christina Coleburn | October 25, 2020

 

An unprecedented election season is in full swing, bringing with it record-shattering turnout and legal controversies as millions of voters cast their ballots in the midst of the Coronavirus pandemic. With the virus disrupting traditional voting methods, cases litigating integral matters of election law have proliferated across the state and federal judicial systems, carrying far-reaching consequences for American voters. Due to the pandemic — the United States has had over 8.5 million cases and nearly 225,000 deaths thus far — changes have been made to election administration policy. These adjustments include counties mailing ballot applications to registered voters, no-excuse absentee voting, and voter registration extensions. Ballot drop-boxes, which have been used by some states in past years, are now widely available. In light of postal service delays, drop-boxes allow voters to submit ballots without using USPS.

Drop-off ballot boxes and their implications for First and Fourteenth Amendment rights are at issue in several lawsuits, most notably in Ohio and Texas. The Ohio Secretary of State and the governor of Texas have pushed to install only one drop-box per county despite huge differences in counties’ geographies and populations. Under this framework, a county with 169 people and a county with 4.7 million people would each have one drop-box. Uniformity in the number of boxes, rather than tailoring the number to the needs of each county, is unreasonable and antithetical to speech and equal protection rights, guaranteed by the First and Fourteenth Amendments respectively. This scheme also contradicts guidance from the U.S. Election Assistance Commission, which recommends having one drop-box for every 15,000 to 20,000 registered voters.

As battleground states, the impact of this litigation in Ohio and Texas is outsized and could influence close races for the White House and Senate control. In these states, some officials have restricted the placement and distribution of drop-off ballot boxes, claiming that such restrictions promote election integrity and prevent illegal voting despite overwhelming evidence to the contrary. In refusing to acknowledge the fallacious nature of these officials’ justifications for limiting access to ballot drop boxes, certain judges have provided cover for these officials, permitting their implementation of potentially harmful election administration policies. Rulings from the latest phases of the Ohio and Texas lawsuits have not only made it harder for residents to safely and securely exercise their constitutional right to vote, but have also permitted threats to speech, expression, and due process to go unchecked.

In A. Philip Randolph Institute of Ohio v. LaRose, the Sixth Circuit Court of Appeals upheld Ohio Secretary of State Frank LaRose’s directive to provide only one absentee drop box per county. Ohio civic groups sued LaRose after he issued this order and forbade county election boards from implementing more ballot boxes at their discretion. The Northern District of Ohio initially granted plaintiffs a preliminary injunction against LaRose’s directive, but the Sixth Circuit stayed the case pending appeal, effectively reinstating the drop box limit. Two of the three judges on the Sixth Circuit panel claimed LaRose would likely win on appeal when the case is decided, and lauded the directive to issue one box per county as fostering “uniformity, which in turn promotes the fair administration of elections.” They argued that “the absence of off-site drop boxes does not impose a material harm” because voters have many other ways by which to cast their ballots. 

In dissent, Judge Helene White countered her colleagues’ flawed reasoning and inappropriate prediction. While the majority attempted to frame LaRose’s directive as a political issue and cautioned that courts should avoid “micromanag[ing]” election administration, Judge White correctly assessed that judicial overreach and the authority of the Secretary of State were not at issue in the case. The crux of the matter was the constitutionality of LaRose’s last-minute directive, which oversteps the authority of county boards that were tasked by the Ohio legislature to control local aspects of the election. Judge White dismantled the notion that uniformity in drop boxes is a necessary component of fair elections in light of differences among counties in population and geography. She underscored that the “[p]laintiffs presented considerable evidence that voters in the largest counties will suffer significant burdens as a result of the Secretary’s directive limiting the ability of the county boards to implement bipartisan plans tailored to best administer efficient, safe, and secure voting in their counties …The Secretary’s asserted interest in uniformity ignores that each county has its own bipartisan election commission with knowledge of the county’s needs.”

LaRose’s argument that a one-box-per-county directive furthers fairness is unsupported by evidence and destructive to voting rights. For example, Cuyahoga County has roughly 850,000 eligible voters, as Judge White noted in her dissent. Noble County, in a different part of Ohio, has fewer than 10,000. Contrary to LaRose’ claims, providing only one box for each county when Cuyahoga serves 85 times as many voters as Noble does not advance equity — it is an affront to it. All three judges should have been united in noting the worrisome impact this directive could have on Ohioans’ First and Fourteenth Amendment rights. The majority’s argument that the directive did not create “material harm” also distorts the proverbial elephant in the room. Even if an Ohioan could vote in person or mail a ballot, the directive nonetheless erodes accessibility in more populous counties. Further, LaRose and the Sixth Circuit’s argument that voter enthusiasm debunks allegations of voter suppression is based in faulty causal reasoning. Voters are excited not because the electoral process works as intended — they are eager to vote due to frustration that it does not.

False narratives that drop-box uniformity prevents fraud and protects election integrity were also echoed in the Texas government’s response to Texas League of United Latin American Citizens v. Abbott, in which Latino voters alleged that a similar Texas one-per-county ballot drop-off policy amounted to voter suppression. Like the Ohio civic groups, these plaintiffs seek voting options that mitigate coronavirus risks for voters who are disproportionately impacted by the pandemic. In this case, a panel of Fifth Circuit Court of Appeals judges similarly reinstated the governor’s single ballot box restrictions, under the guise of preventing “illegal voting.” Similar to the Sixth Circuit’s weak “material harm” contention in the LaRose case, the panel held that Abbott’s order “does nothing to prevent Texans from mailing in their absentee ballots, as they have done in the past in election after election.”

The panel’s decision, however, conveniently omits – or ignores – several relevant details. Voter fraud, as countless studies have shown, is extremely, exceedingly, and extraordinarily rare to the point of virtual nonexistence. A comprehensive investigation by an election law expert found only 31 credible instances of voter fraud among one billion ballots cast between 2000 and 2014. That is lower than the likelihood of being struck by lightning, which is 1 in 500,000 per the Centers for Disease Control. It also fails to mention that the United States Postal Service has been so overburdened during the pandemic that it explicitly cautioned that election mail would be delayed in Texas. As one 82-year-old plaintiff explained in a lawsuit challenging the policy, the single ballot box directive places an unfair burden on voters. He claims it would take him nearly 90 minutes to drive roundtrip to his nearest drop box. Bipartisan election commissions have issued recommendations in recent years advising that voters should not have to wait longer than 30 minutes to cast a ballot.

The litigation thus far in Texas and Ohio has been troubling from both a legislative and judicial standpoint. State actors have implemented duplicitous policies that may negatively impact voter turnout, and ideologically-aligned judges have uncritically defended such directives. With Election Day approaching in less than two weeks, enabling citizens to cast their ballots is all the more important, but it seems likely that this litigation will remain stalled in the courts until it is too late. Given that the timeframe for further litigation would have extended beyond Election Day, the Ohio plaintiffs have since dropped their lawsuit. And at the state level in Texas, where similar litigation is underway arguing the governor’s drop-box policy violates state law, a lower court’s order enabling counties to reopen drop-off locations that had been shuttered has been stayed pending the government’s appeal to the Texas Supreme Court. 

Perhaps now more than ever, voting needs to be as accessible as possible. The Sixth and Fifth Circuit rulings unfortunately make the ballot box all the more out of reach for citizens who want to make their voices heard in this election. This is a shame, because voters should be able to exercise their right to vote without state governments, or courts, infringing upon their speech, expression, and due process rights.

Christina Coleburn is a 1L at Harvard Law School. Follow her on Twitter: @C_Coleburn.

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Democracy For Whom? How the 11th Circuit’s Decision Fits Within a Broader History of Racial Exclusion in the United States.

By Mark Haidar | October 3, 2020

 

In 2018, Florida voters passed a ballot initiative amending the state’s constitution to end lifetime voter disenfranchisement for people with prior felony convictions, except for those convicted of murder or a felony sexual offense. This ballot initiative, known as Amendment 4, restored the right to vote for 1.4 million Floridians, amounting to nearly one in ten adults and one in every five Black adults—five times the rate of White adults in Florida.

Shortly after the passage of Amendment 4, the Republican-controlled legislature passed a law, SB 7066, requiring that all fines, fees, and restitution associated with one’s sentence be paid in full before one may regain his voting rights. Such a law, one would think, comes squarely at odds with the 24th Amendment, which states that the right of citizens to vote “shall not be denied or abridged… by reason of failure to pay poll tax or other tax.” And even if SB 7066 is not a poll tax, requiring voters to pay their debts before casting their ballots surely constitutes wealth discrimination in violation of the Equal Protection Clause.

Yet, on September 11, 2020, the 11th Circuit Court of Appeals upheld this modern-day poll tax, rendering nearly 775,000 of the 1.4 million persons with previous felony convictions no longer eligible to vote due to outstanding legal financial obligations. To understand the court’s ruling, one must look outside the four corners of the judicial opinion and instead look to our nation’s history—for whom does American democracy operate?

For all our nation’s praise of democracy, it has never really been a democracy for all. The same Declaration of Independence that said “all men are created equal” simultaneously permitted the institution of slavery. The three hollowed words that begin our Constitution—“We the People”—really only extended to white, property-owning men. Despite the words of these founding documents—and despite the words of the 24th Amendment—these supposed “protections” seem to matter less when applied to Black persons.

The 11th Circuit’s recent decision serves as a reminder that institutions of racial domination do not simply die, but rather evolve over time. While the 13th Amendment is often credited for abolishing slavery, it essentially sanctioned slavery by way of the criminal justice system—abolishing slavery “except as a punishment for crime whereof the party shall have been duly convicted.” This resulted in a tactical shift whereby, in order to control Black Americans, the state had to proactively label them as “criminals.”

Applying this context to the 11th Circuit decision, it should come as little surprise that Florida’s lifetime felony disenfranchisement law, which passed in 1868, was specifically intended by its advocates to “ke[ep] Florida from becoming [n-word]ized.” At the time, Black people composed almost half of Florida’s population. In response to their growing numbers and increasing political power relative to Whites, the White-controlled legislature passed a series of laws to systematically deny Black Americans their voting rights. Indirect measures such as literacy tests, grandfather clauses, and felony disenfranchisement laws provided the means to eliminate Black votes without violating the 15th Amendment. With Florida’s elections often being decided by razor-thin margins and Amendment 4 representing the single largest expansion of voting rights in the United States in nearly 50 years, the 11th Circuit’s recent decision is but a continuation of these efforts: simply another means to deny Black Americans their voting rights in response to White fear.

Some might argue that SB 7066 is “facially neutral” and does not present different obligations for Black people as compared to White people. However, this would be to ignore how our criminal justice system and economic system interact with Florida’s voting regime. The fact that 43% of those convicted of felonies are Black, roughly three times the percentage of Florida’s Black population, is a direct function of how our criminal justice system hyper-criminalizes Black and Brown people.  Similarly, that Black people are more likely to owe outstanding debt compared to Whites should be considered in view of the racial wealth gap in this country. These systems work in lockstep to permanently block access to the ballot: Black and Brown people are criminalized and convicted as felons, their voting rights are conditioned on the full repayment of legal financial obligations, and the subsequent lack of generational wealth, due to the patchwork of housing, education, and labor laws working against Black people, makes repayment unlikely.

Although the 11th Circuit’s decision is a more sophisticated, insidious method of baking white supremacy into our democracy, less subtle means persist today. Take, for example, the practice of prison gerrymandering. Incarcerated persons, who are disproportionately Black and Brown, are removed from their home districts and instead counted where they are incarcerated—often in rural, White communities. This deflates their community’s political power and inflates the power of White interests. Just as Southern states profited off Black people to increase their political power through the Three-Fifths Compromise, modern day prison gerrymandering follows the same model: using Black bodies to increase the political influence of White interests. The vast majority of jurisdictions count incarcerated persons in this manner, and with 2.3 million people incarcerated across the United States, the effect of this practice is not insignificant.

More significant in preserving white supremacy, however, is our electoral college—and, though questioned less, the institution of the Senate itself. Southern political leaders have worked tirelessly to keep national popular vote off the table, recognizing that Black and Brown persons are concentrated in more populous states. White supremacy drives how we elect our President and who controls our most powerful legislative chamber.

Understood in this context, it becomes less curious why the 11th Circuit ruled the way it did. “Democracy” in the United States has never really meant democracy for everyone. We must work to undo the myriad ways in which our democracy systematically favors White voices over Black.

Mark Haidar is President of the Equal Democracy Project and a Joint JD/MPP Candidate at Harvard Law School and the Harvard Kennedy School of Government.

This blog post first appeared in the Harvard Civil Rights-Civil Liberties Law Review’s Amicus Blog.