This month, the Supreme Court heard testimony on a case that further threatens to weaken the Voting Rights Act. However, more than just the Voting Rights Act is under attack with this case. A ruling by an increasingly conservative court in this case could curtail legal success in other kinds of discrimination cases.

Civil Rights laws are also under attack with this case.

In Brnovich v. Democratic National Committee, the Supreme Court is considering a case that could potentially strike the death knell into what many have proclaimed as the finest Civil Rights law in the country. The Voting Rights Act dismantled, at least for a while, many of the tools that Jim Crow lawmakers used to disenfranchise Black voters.

On the day that the Voting Rights Act was signed in 1965, only about 5% of the Black people of voting age in Mississippi were registered to vote. Two years later, that number was 60%.

Section 2 of the law provides two separate protections against discrimination — the “intent test” and the “results test.” If a voting rights plaintiff can show that an election law was enacted for the purpose of making it harder for voters of a particular race to cast their ballot, then the law violates Section 2’s “intent test.”

As lawmakers became more astute at developing laws that hid their real and discriminatory intent, a 1982 amendment to the Voting Rights Act was passed by Congress. It prohibited states and local governments from adopting voting laws that “resulted” in discriminatory treatment of people of color, regardless of the intent. In other words, if the law you passed had a disproportionately negative impact on people of color, regardless of the writer-s intent, it violated the voting rights act.

The Intent Standard

Conservatives have worked to entrench “intent” as the standard in discrimination cases. In 2018, a ruling in Abbott v. Perez, the court held that lawmakers enjoy such a strong presumption of racial innocence that voting rights plaintiffs will struggle to prove racist intent in all but the most obvious cases.

The 1976 Supreme Court decision in Washington v. Davis helped solidify intent outside of voting rights laws. The ruling requires plaintiffs to prove a perpetrator’s discriminatory “Intent” in order to prove an anti-discrimination claim. However, because contemporary discrimination is frequently structural in nature, unconscious, and/or hidden behind pretexts the showing of “intent” becomes a near-impossible burden for plaintiffs.

Using Washington v. Davis, the Supreme Court helped expanded the intent standard’s reach into almost all equal protection cases. In 1987, McCleskey v. Kemp imposed intent on challenges to death sentences, almost entirely preventing capital defendants from raising the issue of race in their defense. The notion of proving “intent” has also bled into areas of law outside of equal protection. Courts have demanded that plaintiffs prove “intent” in education, employment, criminal law and environmental cases.

Killing the Results Standard

As if expansion of the intent standard wasn’t enough, the case of Brnovich v. Democratic National Committee attempts to significantly diminish, if not end the results standard.

The case involves two Arizona laws that make it harder for some voters to cast a ballot. One law requires election officials to discard ballots that are cast in the wrong precinct. The second prohibits many forms of “ballot collection,” where a voter gives their