Supreme Court Deals Dual Blows To Voting Rights, Election Transparency

Good-government groups decried two Supreme Court rulings that upheld restrictive voting laws in Arizona and struck down a nonprofit donor disclosure rule in California.

The 50th Anniversary Unofficial March on Washington Protest in D.C. in August 2013.. (Lauren Shiplett / Flickr)

This story originally appeared on The Fulcrum, under the headline “Supreme Court upholds voting restrictions, strikes down donor disclosure.”

The Supreme Court on Thursday dealt dual blows to voting rights and election transparency advocates.

In its final two opinions of the term, the court upheld two restrictive voting laws in Arizona and struck down a nonprofit donor disclosure rule in California. In both decisions, the justices ruled 6-3, along ideological lines.

Good-government groups decried both rulings, expressing concern over the larger implications they could have moving forward. The court’s ruling in the Arizona case could make it harder to challenge potentially discriminatory voting rules, and eliminating California’s donor disclosure rule could make it harder for the state to prevent fraud.

Voting Rights

In Brnovich v. Democratic National Committee, the Supreme Court reversed a lower court ruling. The majority determined Arizona’s laws limiting who can return ballots for another person and disqualifying ballots cast in the wrong precinct were not racially discriminatory.

The case took into consideration Section 2 of the 1965 Voting Right Act, a key provision that prevents voting practices or procedures that discriminate against minority groups. Voting rights advocates argued Arizona’s laws banning third-party ballot collection—or what critics call “ballot harvesting”—and discarding ballots cast at the wrong precinct disproportionately affected Black, Hispanic and Native American voters.

Justice Samuel Alito, writing for the majority, stated that voters should expect to face some minor obstacles.

“Voting takes time and, for almost everyone, some travel, even if only to a nearby mailbox. Casting a vote, whether by following the directions for using a voting machine or completing a paper ballot, requires compliance with certain rules. But because voting necessarily requires some effort and compliance with some rules, the concept of a voting system that is ‘equally open’ and that furnishes an equal ‘opportunity’ to cast a ballot must tolerate the ‘usual burdens of voting.'”

But, Alito wrote, certain “guideposts” should be taken into consideration, such as the size of the burden imposed by a challenged voting rule, the degree to which a voting rule departs from standard practice, the disparate impact a rule has on minority voters and the opportunities for voting provided by a state’s entire voting system.

Alito also wrote that it was important to take into consideration the state’s interests served by any voting rule in question. “One strong and entirely legitimate state interest is the prevention of fraud,” he wrote.

Following the 2020 election, Republican state lawmakers have been pushing for stricter voting rules that they say will bolster election security and deter voter fraud, despite no widespread evidence of such malfeasance last year.

Republican National Committee Chairwoman Ronna McDaniel said in a statement that she saw this ruling as a “resounding victory for election integrity and the rule of law.”

In the dissenting opinion, Justice Elena Kagan did not mince words, opining that the majority “writes its own set of rules,” and that this decision undermines Section 2 of the Voting Rights Act.

“This is not how the Court is supposed to interpret and apply statutes. But that ordinary critique woefully undersells the problem,” she wrote. “What is tragic here is that the Court has (yet again) rewritten—in order to weaken—a statute that stands as a monument to America’s greatness, and protects against its basest impulses. What is tragic is that the Court has damaged a statute designed to bring about ‘the end of discrimination in voting.'”

Good-government groups also blasted the ruling, saying it will make challenging and litigating other potentially discriminatory voting laws much more difficult.

“The justices stopped short of eviscerating the Voting Rights Act, but nevertheless did significant damage to this vital civil rights law and to the freedom to vote,” Sean Morales-Doyle, acting director of the voting rights and elections program at the Brennan Center for Justice, said.

Damon Hewitt, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, said Thursday was “a shameful day, and a troubling one for voting rights.”

“When the Supreme Court dismantled the preclearance provision of the Voting Rights Act eight years ago, it cited as part of its rationale that provisions of Section 2 of the Act were still available to protect voters,” he said. “Now, the court has undercut the effectiveness of that important law.”

RepresentUs CEO Josh Silver said this ruling emphasizes the need for congressional action: “The steady chipping away of voter protections underscores the urgent need for the national voting standards in the For the People Act.”

Nonprofit Donor Disclosure

In Americans for Prosperity Foundation v. Bonta, the Supreme Court struck down California’s law requiring charitable nonprofits to privately report the names and addresses of major donors to the state attorney general.

California argued its confidential disclosure requirement—which is similar to federal tax forms charities must send to the IRS—helped the state combat fraud and misuse of charitable contributions. The state has required such disclosure since 2010.

But the court’s conservative majority sided with the two nonprofits that challenged the rule for violating the First Amendment. The Americans for Prosperity Foundation, founded by influential GOP megadonors Charles and David Koch, and the Thomas More Law Center, a conservative Catholic legal group, argued their donors could face potential harassment from the public because in the past California has failed to keep certain donor records private.

Chief Justice John Roberts wrote in the majority opinion that there is a “dramatic mismatch” between California’s interest in preventing fraud and the sensitive donor information required to do so.

“The upshot is that California casts a dragnet for sensitive donor information from tens of thousands of charities each year, even though that information will become relevant in only a small number of cases involving filed complaints,” Roberts wrote.

But the court’s three liberal justices warned about the lasting implications of this ruling.

“Today’s analysis marks reporting and disclosure requirements with a bull’s-eye. Regulated entities who wish to avoid their obligations can do so by vaguely waving toward First Amendment ‘privacy concerns,'” Justice Sonia Sotomayor wrote in the dissenting opinion.

While this case is about the reporting rules for charities and other tax-exempt organizations, good-government advocates were concerned this case could open the door for successful challenges to campaign finance transparency rules—or to the disclosure requirements for the millionaires, businesses and advocacy groups that spend exorbitant amounts to influence elections.

And while the justices did not call campaign finance disclosure into question with this ruling, the Campaign Legal Center said in a statement that the decision still “needlessly brushes aside precedent in favor of wealthy special interests—expanding an exemption originally reserved for marginalized groups to seven-figure donors hoping to insulate themselves from public criticism.”

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Sara Swann is a staff writer at The Fulcrum covering campaign finance and other reform issues. She previously reported on local and state government for The Daily Times on Maryland's Eastern Shore. She has also done money in politics reporting for the Center for Responsive Politics. Sara is an alumna of Syracuse University.