The U.S. Supreme Court’s conservative majority has given Republican state lawmakers much clearer guidance on suppressing minority voting with Brnovich v. DNC. Hollowing out the last meaningful provision of the 1965 Voting Rights Act, the court held that excluding ballots cast at the wrong precinct and prohibiting friends and family members from delivering absentee ballots on pain of a felony prosecution did not violate Section 2 of the landmark civil rights law.

Writing for the majority, Justice Samuel Alito reveals contempt for the primary targets of the rules – Native Americans living in rural areas – when he comments that, “Mere inconvenience cannot be enough to demonstrate a violation of §2.” An accompanying footnote in the majority opinion elaborates on the conceptualized acceptable ‘mere inconvenience’ using hypothetical examples involving difficulty finding parking to visit a museum and reluctance to take a college course because of the amount of assigned reading.

Photo and map of the Long Walk to Bosque Redondo (Navajo: Hwéeldi), refers to the 1864 deportation and attempted ethnic cleansing[1][2] of the Navajo people by the United States federal government" –
“The Long Walk to Bosque Redondo (Navajo: Hwéeldi), refers to the 1864 deportation and attempted ethnic cleansing[1][2] of the Navajo people by the United States federal government” –Wikimedia.

What the footnote unintentionally reveals is the extreme disconnection between the hypothesized urban ‘rich people problems’ that Alito and his law clerks can imagine and the real problems of many Native Americans in the rural American west. The Navajo Nation and Tohono O’odham Reservation cover immense areas. The Navajo Nation is as large as West Virginia. Residents typically have no mailing street address, accessing post offices and other services infrequently because they live so far away from them. Many residents are elderly, chronically ill or unemployed. Many live without internet access, regular electricity and even running water. They may depend entirely on family and friends for transportation.

What the court’s conservative majority is saying is that if an affluent resident of the nation’s capital with all its transportation services and amenities would have no trouble abiding by election rules imposed by Arizona, how dare any Navajo living an hour’s drive down a dirt road from the nearest office complain? Echoes of Capt. Asa Carey instructing Manuelito in 1864, “There is but one place for you and that is to go to the Bosque [Redondo].”

Knowing that Native Americans are more likely to vote for Democratic candidates, Arizona’s Republican state lawmakers devised the voting restrictions at issue in Brnovich v. DNC to suppress their participation. Alito is fine with that because his judicial crusade is defending the wealthy and the powerful in the name of a culturally Western European traditional social hierarchy. From his lofty vantage, these are simply more “predictable disparities.” If Republican candidates are more likely to win their contests because fewer elderly, disabled, ill or poor Navajo or Tohono O’odham exercise their right to vote, then it is “mission achieved.”

Brnovich matters because it encourages Republican state legislators across the country to impose additional obstacles on the right to vote of minorities. That is bad news for the U.S. Department of Justice’s challenge to Georgia’s SB 202 voter suppression law, whose most infamous rule prohibits giving water to voters standing in line. In 2020 Georgia Republican state lawmakers were outraged when community organizations handed out water bottles to voters standing in long lines they had carefully devised to discourage to keep Black Georgians away from the polls. The Georgia law also prohibits local governments from distributing unsolicited absentee ballots, changes the deadline for requesting absentee ballots, prohibits counting out of precinct provisional ballots and reduces the number of ballot drop boxes. The racist animus in SB 202 is obvious in the specific numbers of drop boxes permitted Atlanta area counties: eight for Fulton, six for Gwinnett, and five each for DeKalb and Cobb. The DOJ’s filing deserves to be read by all Georgians for the clarity of its issue framing, legal logic and referenced evidence. The back-room trickery of the legislative process it describes is obviously reprehensible. There is also humor in the filing when it repeats State Representative Barry Fleming’s bizarre comments that absentee balloting occurs in the “shady part of town down near the docks” where there is a risk of “being shanghaied.” Fleming’s House District 121 is a roughly two-hour drive from the docks in Savannah, but a white Republican can never be too careful … given that shanghaiing is as big a problem as electoral fraud.

That the right to vote varies significantly from state to state ought to offend any real American Patriot, meaning those who of us still value liberty and justice for ourselves and for our fellow citizens. With Brnovich, the court’s conservative majority has failed in its responsibility to guarantee the most basic of democratic rights and has thereby further undermined the integrity of our republican institutions. Little wonder then that many now endorse expansion of the U.S. Supreme Court as necessary to safeguard the republic.


Image Credits: The Supreme Court as composed October 27, 2020 to present. Front row, left to right: Associate Justice Samuel A. Alito, Jr., Associate Justice Clarence Thomas, Chief Justice John G. Roberts, Jr., Associate Justice Stephen G. Breyer, and Associate Justice Sonia Sotomayor. Back row, left to right: Associate Justice Brett M. Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil M. Gorsuch, and Associate Justice Amy Coney Barrett. (Credit: Fred Schilling, Collection of the Supreme Court of the United States (public domain); the photo of the Long Walk to Bosque Redondo (Navajo: Hwéeldi), refers to the 1864 deportation and attempted ethnic cleansing[1][2] of the Navajo people by the United States federal government (via domain); the map was created by Günter Strube (Creative Commons).

John Hickman

John Hickman

John Hickman is Professor of Political Science in the Department of Government and International Studies at Berry College in Rome, Georgia, where he teaches courses on war crimes, comparative politics, and research methods. He holds both a PH.D. in political science from the University of Iowa and a J.D. from Washington University, St. Louis. Hickman is the author of the 2013 Florida University Press book Selling Guantanamo.