A Good Day for Free Speech and Free Elections

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(Jonathan Ernst/Reuters)

Legal constitutionalists and political conservatives have had reason to be disappointed at times with the Roberts Court, but today is not one of those days. The Court concluded its 2020-21 term with a pair of 6-3 rulings written by George W. Bush’s appointees (Chief Justice John Roberts and Justice Samuel Alito) and joined by all six Republican appointees to the Court. Both reached the right conclusions. Both will advance the progress of the law toward a vibrant space for democracy, by protecting free speech and free and fair elections.


Americans for Prosperity Foundation v. Bonta arose from the California attorney general’s office, mainly under Kamala Harris and Xavier Becerra, trampling the First Amendment rights of nonprofit advocacy groups to the privacy of their donors. It was not a coincidence that California launched that initiative at the height of the Tea Party movement. Its draconian scope applied not only to California charities but to any nonprofit that solicited donations in the state — even Chinese dissident groups. In an age of cancel culture and ever-increasing digital surveillance, the Court found, the risks of harassment and reprisals “are heightened in the 21st century and seem to grow with each passing year, as anyone with access to a computer can compile a wealth of information about anyone else, including such sensitive details as a person’s home address or the school attended by his children.”

The cause of donor rights brought together possibly the broadest coalition of interest groups on the same side of an issue in the Court’s history. Even the Biden administration’s brief admitted that Harris and Becerra had disregarded the importance of protecting the privacy of donors by maintaining donor lists on a system the trial court found to be “an open door for hackers.” Given the record of Harris and Becerra, Roberts wrote, their office’s “assurances of confidentiality are not worth much.” The Court also found “a dramatic mismatch” between the California AG’s claimed interest in fighting charitable fraud and its methods, with “not a single, concrete instance” in which collecting this information advanced its law-enforcement purpose. AFPF v. Bonta may be a loss for the likes of Kamala Harris and Xavier Becerra, but it is a victory for the free-speech and association rights of people and groups spanning the entirety of the political spectrum. It is also a shot across the bow against the Democrats’ “For the People Act,” which similarly invades the privacy of donors.


Brnovich v. Democratic National Committee upheld two Arizona laws that are common across many states: a ban on counting provisional ballots if they are cast in person in the wrong precinct, and a ban on “ballot harvesting,” preventing activist groups from collecting and handling another person’s completed mail-in ballot. Both types of rules are regularly decried as “voter suppression” by hysterical Democrats. The Court properly found that Arizona had a legitimate interest both in assigning voters to precincts and in protecting the sanctity of the secret ballot from the threat of voter intimidation or fraud presented by third parties handling ballots.



The Court rightly rejected efforts to cast the Arizona legislature’s careful work as driven by racial discrimination simply because one state legislator who brought ballot harvesting to the legislature’s attention had also engaged in wild conspiracy theories. Alito shut down future efforts to apply such theories: “legislators who vote to adopt a bill are not the agents of the bill’s sponsor or proponents. Under our form of government, legislators have a duty to exercise their judgment and to represent their constituents. It is insulting to suggest that they are mere dupes or tools.”

Democrats routinely file suits under Section 2 of the Voting Rights Act against any change in election law passed by Republican legislatures. Alito’s opinion, the Court’s first applying Section 2 to challenges to voting procedures, emphasized that the statutory language passed when the statute was last amended in 1982 focuses on whether state laws have the overall result of restricting the access of racial minorities to voting — it does not prohibit every single rule that makes voting marginally less convenient. “The core” of Section 2, Alito wrote, “is the requirement that voting be ‘equally open.’ The statute’s reference to equal ‘opportunity’ may stretch that concept to some degree to include consideration of a person’s ability to use the means that are equally open. But equal openness remains the touchstone.”

The Court provided five “guideposts” that will help courts decide cases and dispose of flimsy ones: courts should have a sense of proportion about “the size of the burden imposed. . . . Mere inconvenience cannot be enough”; courts should ask how far “a voting rule departs from what was standard practice” when the statute was written in 1982; small disparities in the impact of laws on minority-group voting are less likely to violate Section 2, especially where the voter-suppression theory relies on differences “with respect to employment, wealth, and education”; courts “must consider the opportunities provided by a State’s entire system of voting” rather than individual provisions; and courts should also consider “the strength of the state interests served,” specifically including the powerful state interest in preventing fraud. “It should go without saying,” Alito added, “that a State may take action to prevent election fraud without waiting for it to occur and be detected within its own borders.”


The Court’s renewed focus on the language of the law passed by Congress, and its guidance in how to apply it in practice, is welcome. The doors of the federal courthouse should always remain open to protect all Americans — and black Americans in particular, given the nation’s painful history — from laws that result in real discrimination in who is able to vote. But federal law was never intended to put every state in the Union in a permanent straitjacket to the point where even temporary emergency voting rules adopted to manage a once-in-a-century pandemic can never be revisited. Brnovich is bad news for junk lawsuits such as the Justice Department’s suit against Georgia. But it is good news for letting the people’s representatives protect free, fair, open, and orderly elections. Trust in democracy requires nothing less.


With a series of high-stakes cases on the docket for next term on hot-button issues, we can only say of the Roberts Court after reading today’s opinions: a good start.


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