Jim Crow Is Back Because John Roberts Let It Happen
Republican assaults on voting rights are happening because we no longer have a real Voting Rights Act.
The last nine months have seen the most terrifying assault on American democracy in 150 years. A quarter of Americans believe Trump’s “Big Lie” that the 2020 election was stolen. On transparently false pretexts, three states, soon to be four, have passed the most extensive restrictions on voting since Jim Crow—not coincidentally targeting the same people, Black voters. And Republican Party leadership has not only refused to investigate the January 6 insurrection, which was based on lies about voter fraud and stolen elections, but has now spun their own Orwellian rewriting of history to deny they had anything to do with it.
There are many people responsible for this lamentable state of affairs: Donald Trump, the demagogues at Fox News, opportunists like Ted Cruz and Josh Hawley, plenty of Trump wannabes in Florida and Texas, and the ordinary Americans who watch or vote for them.
But you can draw a straight line from the anti-democratic depredations of 2021—and what has to be done to fix them—to the chambers of Chief Justice John Roberts.
It was Roberts who, in 2013, cast the deciding vote (and wrote the opinion for the 5-4 Court) to eviscerate the Voting Rights Act, in particular the “preclearance” standards of Section 4(b), which determined which states had to obtain federal preclearance before implementing changes to voting laws.
And it was that decision, in Shelby County v. Holder, that opened the floodgates to waves of Republican-led voter suppression that have disproportionately affected communities of color: closing polling places in heavily Black neighborhoods while increasing them in white ones, ending online voter registration, curtailing voting hours, making voting-by-mail harder, requiring photo ID, closing drive-through voting, eliminating drop boxes, empowering partisan poll-watchers to intimidate voters, preventing volunteers from giving voters water while they wait in long lines (which matters more if polling places have been shuttered), purging voters from the rolls, and many more.
None of these things, not a single one, would have happened had Shelby County gone the other way.
“I’m 100 percent certain the Texas law would’ve been blocked under the Voting Rights Act, if John Roberts hadn’t gutted the law,” said Ari Berman, author of Give Us the Ballot: The Modern Struggle for Voting Rights in America. Berman says Texas Republicans wouldn’t have even tried to pass it, because it obviously wouldn’t survive.
The reasons, said Berman, are both substantive and procedural. To obtain preclearance from the Department of Justice, states had to show, among other things, that the changes didn’t leave Black voters worse off and that they were made as a result of a reasonable, deliberative process.
“That’s pretty hard to do when drive-through voting, extended-hours voting, and Sunday voting are all disproportionately used by voters of color,” said Berman. All of those avenues for voting would be eliminated under the Texas bill. Not to mention the frantic effort to cobble together the bill over Memorial Day weekend–itself, says Berman, grounds to deny preclearance.
“They’ve done pretty much everything they can to violate the Voting Rights Act,” Berman told the Daily Beast, “but they think they can get away with it because it’s going to go before Republican courts,” now stacked with Trump appointees.
That’s why it’s open season: because there’s effectively no more federal review or judicial review in place. And for that, we can thank Chief Justice Roberts, who argued in 2013 that the formula used to require preclearance was out of date. After all, he said, Southern states have come so far in the years since it was set.
And now they’re turning back the clock.
Now, to listen to Republicans, these measures are necessary for reducing fraud, or in the new Doublespeak of 2021, promoting “election integrity.” But despite years of trying, Republicans have never been able to show more than a trivial amount of such fraud.
“It’s amazing how poorly they’ve made the case,” Berman said. “[Texas Attorney General] Ken Paxton spent 22,000 hours trying to find fraud, and he found 16 false registrations out of 11 million voters. It’s incredibly pathetic.”
But almost half of the country is still living in the Trump era of alternative facts and fake news. So when the Carlsons and Hannitys of the world amplify Republican talking points about voter fraud, people believe them, even though the people making the claims have all the credibility of the My Pillow Guy.
All of this preceded the Big Lie—I’ve been writing about these bogus claims for a decade now, and they’ve been debunked over and over and over and over again. There is simply no systemic voter fraud. None. If you hear someone say that there is, they’re either a dupe or they’re a liar.
In fact, Berman believes that the long history of lying about voter fraud “laid the groundwork for the Big Lie. It’s not like Trump got it out of nowhere. Republicans told a bunch of little lies and then Trump told the Big Lie.”
Continued Berman, “they’ve been running the Trump playbook for a decade–Trump just made it a prime time production.”
But one thing has changed, which is the centrality and openness of the voter suppression effort. In years past, these measures flew under the radar, all the better to shield them from scrutiny. Now, says Berman, “how hard you make it to vote has become a litmus test of what it means to be a Republican… The line in the sand used to be pro-life or pro-guns–now it’s, are you pro-stealing an election.”
It’s equally obvious why all of this is happening.
“They know they’re outnumbered,” Berman said–“they” being the overwhelmingly white Republican Party. “It’s no coincidence that Texas led the effort to overturn the election in the Supreme Court, and even more than anywhere else, are so committed to being against democracy…. How is it possible that a state with whites in a minority now has nearly every statewide office held by a white Republican? They know it’s just a matter of time. If Texas goes blue, they’ll never win another presidential election. So they’re really going to pull out all the stops.”
What can be done?
“I don’t see a solution outside of federal legislation,” said Berman. “Where else is it going to come from? Organizing isn’t enough. Courts aren’t going to be where it happens. What would actually solve the problem would be a new Voting Rights Act.”
In other words, a new law is needed to replace the one that Chief Justice Roberts tore to pieces eight years ago.
Funny thing is, that law–the John Lewis Voting Rights Act–is set to pass the House, where Democrats have a thin majority, and there are over 50 votes for it in the Senate. So why is it not happening? The threat of a Republican filibuster. Not even an actual filibuster, with senators waxing for hours about nothing in order to prevent a vote from being called–just the threat of a filibuster is enough to derail the only way to ensure equal access to voting in 2022 and beyond.
And that is because two Democrats, Senators Kyrsten Sinema and Joe Manchin, are standing in the way of repealing the filibuster in the face of this unprecedented abuse of it.
Even though it’s a relatively recent rule that has been used to entrench white supremacy (and, in particular, oppose voting rights) more than anything else.
Even though it’s a once-rare tactic that, in this short session alone, has already been deployed to oppose voting rights, LGBTQ equality, and the Jan. 6 commission.
And even though the filibuster is so profoundly undemocratic that it can be maintained with the support of senators representing just 11 percent of the U.S. population. (A filibuster requires 41 votes, i.e., senators from 21 states. The population of the 21 smallest states in America is equal to 11 percent of the total population.)
Now, West Virginia voters are not likely to punish Senator Manchin for this–but it boggles the mind why Sinema thinks this won’t be an issue for voters in Arizona, which went for Biden in the 2020 election. At the very least, these moderates should agree to make the Republicans actually filibuster rather than merely threaten to do so. If the filibuster is so wonderful, well, let’s see it in action. Because even if Ted Cruz has 16 hours to talk about systemic voter fraud, he still won’t be able to show any evidence for it.
The fact is, Republicans are going to keep preventing Black people from voting until something changes. Until we have the John Lewis Voting Rights Act, we’re going to have John Roberts’ Voter Suppression.