In Brnovich, the court affirmed two Arizona laws: one that allows (provisional) ballots cast in a precinct not assigned to the voter to not be counted; and another that limits “ballot harvesting,” i.e., who can submit an absentee ballot for someone else. These provisions are the same, or are similar, to legislation being passed and proposed this year in Republican-led states in response to the 2020 presidential election. Georgia’s new voting law for example, has a similar provisional ballot provision and one that criminalizes ballot harvesting.

What is most disturbing is that in the process of judging the Arizona laws under Section 2, the court reinterpreted the statute and applied its own, new form of review, one that rendered Section 2 unavailable to do the work it was passed by Congress to do. Instead of observing past law, past precedent, like the court is supposed to do and evaluating the Section 2 claims using the “totality of the circumstances” factors outlined in a case called Thornburg v. Gingles, the court characterized the policies as different from the usual Section 2 districting cases and applied its own standard. Instead of furthering the purpose of Section 2 to prevent discrimination against some voters, the court argued that some discrimination is lawful.

Justice Samuel Alito’s writing, joined by five members of the court, held that Arizona can enforce “time, place and manner” policies that disproportionately discriminate against minority voters if voters have other methods to cast ballots in the state. The court also held that (non-existent) voter fraud protection is a legal basis for a state to pass a voting law.

Eight years ago in Shelby v. Holder, the court voided the Section 4 identification formula to identify states subject to Section 5 that were then required to submit new voting laws to the Department of Justice to ensure that they would not racially discriminate. In Shelby, the court disabled the only weapon the nation had for avoiding the passage of discriminatory voting laws before they passed.

In this decision, Brnovich, the court arguably decimated Section 2, the only VRA provision left available to protect voters from existing laws after they cause discrimination. Now that the court has reconfigured the law and changed how it is applied, it means that when the many laws passed this year in GOP-led states that are designed to discriminate against minority voters, to tamp the high turnout seen in 2020, Section 2 of the VRA won’t be there to provide relief.

Today, the Brnovich decision is a problem for Native and Latino voters in Arizona. “Tomorrow,” the decision will prove to be a problem for minority voters in GOP-led states. In 2022, unless Congress repairs voting rules by passing fair nationwide rules, the decision will be a problem for all voters, because no one will have the opportunity to participate in a fair, fraud-free election.