The Court v. Democracy
The American people will have the opportunity to vote in less than two weeks in midterm elections that may prove the most consequential in decades. Unfortunately, hundreds of thousands of qualified voters will face barriers established by Republican state officials, and millions more will have the impact of their votes diluted by partisan gerrymandering. The effect of all of this will be exacerbated by the distorting flow of hundreds of millions of dollars of dark money into elections. Republicans stand to benefit. In each instance, their advantage was enabled by the Republican-appointed majority of the Supreme Court.
For decades, Republicans have operated on the principle that they prosper when fewer people vote. The Republican base has become older, whiter, and smaller as the overall population has become more diverse. The effects of demography have been exacerbated by the growing unpopularity of Republican policy positions. Republicans’ ace-in-the hole has been that older and whiter voters generally turn out in higher percentages than younger, poorer, and more diverse voters. That effect is exaggerated in midterm elections. Without a presidential contest, interest is low and Republicans over-perform, as they did in taking the House in 2010 and the Senate in 2014.
As the Republican demographic disadvantage has grown and the party’s base has consolidated around its older, white core, Republicans have understood that they must find ways to shrink the electorate by carving out Democrats without cutting their base. They have adopted a phony voter fraud mantra to justify a range of voter suppression measures, including the adoption of photo ID requirements, and strict rules requiring purging voters for non-participation or slightly inconsistent registration information. They have also shortened periods for early voting, eliminated pre-registration for 17-year olds, and changed and eliminated polling places. These measures disproportionally burden poor and minority voters in the service of combating voting fraud that nobody has been able to identify.
How can such obviously anti-democratic voter suppression measures be legal? Occasionally, they’re not, but far too often Republican legislators and administrators are successful in defending them or can stay one step ahead of litigation. That’s largely because of two disastrous Supreme Court decisions, in which the Roberts Court ensured that the law would accommodate these shenanigans blocking access to the ballot.
In the first, Crawford v Marion County Election Bd. (2008), the Court upheld Indiana’s requirement that voters show photo identification to vote. The state conceded that it had never prosecuted a case of in-person vote fraud, but convinced the Court that the abstract interest in the integrity of the election system justified burdening the right to vote. Crawford was limited in two important ways. It was a facial challenge, which meant the Court had to uphold it unless there was no conceivable way in which it could be applied constitutionally, and the plaintiffs did not challenge it as racially discriminatory.
Despite Crawford’s limitations, states routinely rely on it to justify a proliferating number of photo ID laws. Although federal appeals courts have struck down photo ID laws in Texas and North Carolina as racially discriminatory, the Supreme Court is likely to have the last word. The addition of Justice Kavanaugh tilts the balance strongly in favor of photo ID laws that disadvantage poor, young, and minority voters.
The second case is Shelby County v. Holder (2013), in which Chief Justice Roberts and four Republican-appointed justices gutted the Voting Rights Act. The Act’s requirement that certain jurisdictions obtain permission from Washington before implementing election changes had been reauthorized for twenty-five years by a unanimous Senate and an overwhelming House majority in 2006. After extensive hearings, Congress concluded that persistent discrimination required continuation of the preclearance requirement. Chief Justice John Roberts, who had been a critic of the Act before going on the bench, in an extraordinary display of judicial hubris, rejected Congress’s finding, substituting his conclusion that the country had changed, rendering the Act’s protection against discrimination unwarranted.
The decision unleashed an orgy of vote suppression activity among previously covered states. Texas announced immediately that its previously blocked photo ID law would go into effect. North Carolina promptly enacted legislation incorporating a litany of racially discriminatory voter suppression measures. Others followed suit up until the current election. Measures such as the exact match law being enforced in Georgia to prevent registration of (disproportionately minority) voters would not have been permitted before Shelby County.
Many voters who fight their way through the thicket of democracy-blocking measures to gain access to the ballot will find the impact of their votes has been diluted by gerrymanders that disproportionately favor Republicans. While the Supreme Court has toyed with the possibility of stepping in to police gerrymandering, it backed away from major cases in Wisconsin and Maryland last term. The addition of Brett Kavanaugh to the Court virtually guarantees that the Court will not limit gerrymandering in the foreseeable future.
Finally, the Roberts Court’s decision in Citizens United v. FEC invoked the First Amendment to strike down controls on money flowing into the electoral process. As a result of Citizens United and its progeny in lower courts, followed by McCutcheon v. FEC (striking aggregate limits on direct contributions), money flows in virtually unlimited amounts, often from unidentified donors. Republicans have benefitted disproportionately from the liberation of big donors, though Democrats have struggled mightily to catch up.
Voters who are able to cast ballots on November 6 will participate in a system that has been made far less democratic. By upholding measures that block ballot access, gutting the Voting Rights Act, declining to remedy unconstitutional gerrymanders, and permitting unregulated amounts of money to flow into politics, the Supreme Court has cleared the field for Republicans to limit the franchise and dilute its effect. That is the very opposite of what should be happening in a healthy democracy.
Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.