By
Ari Berman
Ari Berman is a senior reporter for Mother Jones and the author of “Give Us the Ballot: The Modern Struggle for Voting Rights in America.”
September 24, 2020 at 10:41 a.m. CDT
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In 2013, the Supreme Court’s five-member conservative majority gutted the Voting Rights Act by ruling that states with a long history of racial discrimination in their conduct of elections no longer needed to pre-clear changes to voting laws with the federal government, holding that “things have changed dramatically” since the act was passed in 1965.
To this, Justice Ruth Bader Ginsburg, who died Friday at 87, memorably dissented: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet,” she wrote. Her words were prescient. Doing away with pre-clearance allowed states such as Georgia and Texas to implement new restrictions on voting, such as stricter voter ID laws, closing polling places in precincts serving minority communities and adding new barriers to voter registration that disproportionately impacted voters of color.
That’s not the only way the court, led by Chief Justice John G. Roberts Jr. — who was appointed by President George W. Bush — has made it more difficult to vote in the past few years: In 2018, it approved efforts by Republican-controlled states such as Ohio to remove voters from the rolls simply for skipping a few elections (making voting, in effect, a use-it-or-lose-it right), and last year it ruled that federal courts did not have the power to review gerrymandered maps in states like Wisconsin, where Republicans got less than half of the overall votes cast for state assembly races in 2018 but wound up controlling almost two-thirds of the seats.
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But these decisions are probably just a preview of what’s to come if President Trump gets his way and the Senate fills Ginsburg’s seat by confirming a sixth conservative justice to the court this year. A 6 to 3 conservative majority will embolden the court to strike down what’s left of the Voting Rights Act, encouraging GOP-controlled states to pass even more sweeping restrictions on voting and making it nearly impossible for citizens to counteract gerrymandered maps.
The court has already embraced many GOP voter suppression efforts. But previously radical positions that were only embraced by some current members of the court or GOP-appointed judges in the lower courts could soon go from fringe to mainstream. And the long lines, rejected mail-in ballots and voter confusion that defined the primary season could become the new normal in American politics.
When the Roberts court eliminated the VRA’s pre-clearance requirement in Shelby County v. Holder, it left in place another part of the law, Section 2, that allows restrictions on voting to be struck down if they result in discrimination against voters of color, regardless of evidence of intent. But the court could effectively nullify Section 2 by requiring proof of intentional discrimination to void an election change, requiring plaintiffs to find smoking gun evidence to prevail in the courts, which is very rare in this day and age.
Roberts took this position in the 1980s when he was a young lawyer in the Reagan Justice Department, seeking to preserve a lower-court ruling finding that intentional discrimination was needed to win Section 2 cases. “Violations of Section 2 should not be made too easy to prove, since they provide a basis for the most intrusive interference imaginable by federal courts into state and local processes,” he wrote in 1981.
Kavanaugh’s Senate hearing isn’t a trial. The standard isn’t ‘reasonable doubt.’
Roberts lost that fight when Congress reauthorized the VRA a year later and said that minority voters only had to show that a voting change had the effect of discriminating against them, not that it was intentional. But Republicans have resurrected Roberts’s original position. After the NAACP argued that the selection of appellate judges in Alabama violated the VRA (at the time, the state was around 26 percent Black but all 19 of its appellate judges were White), the state responded that Section 2 was unconstitutional. Though Alabama did not prevail at the 11th U.S. Circuit Court of Appeals in its attempt to throw out the lawsuit, its then-solicitor general, Andrew Brasher, is now a Trump-appointed judge on that circuit, and his then-brief was cited favorably by another Trump-appointed judge on the circuit, Elizabeth Branch, in her dissent. (In a 2018 case from Texas, Justices Clarence Thomas and Neil M. Gorsuch argued that Section 2 shouldn’t prohibit racial gerrymandering, either.) Roberts wrote in 2013 that his Shelby opinion “in no way affects the permanent, nationwide ban on racial discrimination in voting found in §2,” but there could now be another vote on the court to revisit that.
GOP-appointed judges are already using another Roberts decision as a justification to make it more difficult to vote. In Rucho v. Common Cause, Roberts ruled that federal courts could not review challenges to partisan gerrymandering because these were inherently political decisions that could only be resolved at the state level. Though the decision only applied to redistricting, lower court judges have recently cited his rationale to allow new restrictions on voting: In June, the Seventh Circuit upheld efforts by Wisconsin Republicans to limit early voting, with Judge Frank Easterbrook writing that “legislators are entitled to consider politics when changing the rules about voting,” ignoring that the whole purpose of voter suppression is to stack the political system against one party or set of voters, such as African Americans. In Wisconsin, for example, Black voters were three times more probable than Whites to be deterred from voting by the state’s voter ID law in 2016, and a district court found that early voting hours were cut “to suppress the reliably Democratic vote of Milwaukee’s African Americans.” If the Supreme Court were to find that restrictions on voting such as voter ID laws or cutbacks to early voting were merely political disputes not reviewable by the courts instead of a grave constitutional injury, that would make them nearly impossible to strike down.
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Ari Berman
Ari Berman is a senior reporter for Mother Jones and the author of “Give Us the Ballot: The Modern Struggle for Voting Rights in America.”
September 24, 2020 at 10:41 a.m. CDT
Add to list
In 2013, the Supreme Court’s five-member conservative majority gutted the Voting Rights Act by ruling that states with a long history of racial discrimination in their conduct of elections no longer needed to pre-clear changes to voting laws with the federal government, holding that “things have changed dramatically” since the act was passed in 1965.
To this, Justice Ruth Bader Ginsburg, who died Friday at 87, memorably dissented: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet,” she wrote. Her words were prescient. Doing away with pre-clearance allowed states such as Georgia and Texas to implement new restrictions on voting, such as stricter voter ID laws, closing polling places in precincts serving minority communities and adding new barriers to voter registration that disproportionately impacted voters of color.
That’s not the only way the court, led by Chief Justice John G. Roberts Jr. — who was appointed by President George W. Bush — has made it more difficult to vote in the past few years: In 2018, it approved efforts by Republican-controlled states such as Ohio to remove voters from the rolls simply for skipping a few elections (making voting, in effect, a use-it-or-lose-it right), and last year it ruled that federal courts did not have the power to review gerrymandered maps in states like Wisconsin, where Republicans got less than half of the overall votes cast for state assembly races in 2018 but wound up controlling almost two-thirds of the seats.
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But these decisions are probably just a preview of what’s to come if President Trump gets his way and the Senate fills Ginsburg’s seat by confirming a sixth conservative justice to the court this year. A 6 to 3 conservative majority will embolden the court to strike down what’s left of the Voting Rights Act, encouraging GOP-controlled states to pass even more sweeping restrictions on voting and making it nearly impossible for citizens to counteract gerrymandered maps.
The court has already embraced many GOP voter suppression efforts. But previously radical positions that were only embraced by some current members of the court or GOP-appointed judges in the lower courts could soon go from fringe to mainstream. And the long lines, rejected mail-in ballots and voter confusion that defined the primary season could become the new normal in American politics.
When the Roberts court eliminated the VRA’s pre-clearance requirement in Shelby County v. Holder, it left in place another part of the law, Section 2, that allows restrictions on voting to be struck down if they result in discrimination against voters of color, regardless of evidence of intent. But the court could effectively nullify Section 2 by requiring proof of intentional discrimination to void an election change, requiring plaintiffs to find smoking gun evidence to prevail in the courts, which is very rare in this day and age.
Roberts took this position in the 1980s when he was a young lawyer in the Reagan Justice Department, seeking to preserve a lower-court ruling finding that intentional discrimination was needed to win Section 2 cases. “Violations of Section 2 should not be made too easy to prove, since they provide a basis for the most intrusive interference imaginable by federal courts into state and local processes,” he wrote in 1981.
Kavanaugh’s Senate hearing isn’t a trial. The standard isn’t ‘reasonable doubt.’
Roberts lost that fight when Congress reauthorized the VRA a year later and said that minority voters only had to show that a voting change had the effect of discriminating against them, not that it was intentional. But Republicans have resurrected Roberts’s original position. After the NAACP argued that the selection of appellate judges in Alabama violated the VRA (at the time, the state was around 26 percent Black but all 19 of its appellate judges were White), the state responded that Section 2 was unconstitutional. Though Alabama did not prevail at the 11th U.S. Circuit Court of Appeals in its attempt to throw out the lawsuit, its then-solicitor general, Andrew Brasher, is now a Trump-appointed judge on that circuit, and his then-brief was cited favorably by another Trump-appointed judge on the circuit, Elizabeth Branch, in her dissent. (In a 2018 case from Texas, Justices Clarence Thomas and Neil M. Gorsuch argued that Section 2 shouldn’t prohibit racial gerrymandering, either.) Roberts wrote in 2013 that his Shelby opinion “in no way affects the permanent, nationwide ban on racial discrimination in voting found in §2,” but there could now be another vote on the court to revisit that.
GOP-appointed judges are already using another Roberts decision as a justification to make it more difficult to vote. In Rucho v. Common Cause, Roberts ruled that federal courts could not review challenges to partisan gerrymandering because these were inherently political decisions that could only be resolved at the state level. Though the decision only applied to redistricting, lower court judges have recently cited his rationale to allow new restrictions on voting: In June, the Seventh Circuit upheld efforts by Wisconsin Republicans to limit early voting, with Judge Frank Easterbrook writing that “legislators are entitled to consider politics when changing the rules about voting,” ignoring that the whole purpose of voter suppression is to stack the political system against one party or set of voters, such as African Americans. In Wisconsin, for example, Black voters were three times more probable than Whites to be deterred from voting by the state’s voter ID law in 2016, and a district court found that early voting hours were cut “to suppress the reliably Democratic vote of Milwaukee’s African Americans.” If the Supreme Court were to find that restrictions on voting such as voter ID laws or cutbacks to early voting were merely political disputes not reviewable by the courts instead of a grave constitutional injury, that would make them nearly impossible to strike down.
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