While attention focused on President Trump’s taxes, the Supreme Court’s conservative majority spent much of this year’s session quietly chipping away at the ability of Democrats to cast ballots in November.
It has been clear since the Supreme Court literally handed the presidency to George W. Bush in 2000—based on a decision so shoddily and dishonestly reasoned that the court declared its own ruling was not to be relied upon in the future—that conservative justices are not above using their power to tilt or even decide elections. In fact, it’s happening right now.
As Trump’s ongoing rants against voting by mail demonstrate, hindering, and even barring, Democratic votes is critical to the GOP’s increasingly tenuous hopes of retaining the White House, as well as control of the Senate and many state legislatures, in November. And the court, which has been chipping away at voting rights since John Roberts’ arrival there as chief justice in 2005, has accelerated its efforts this year, just in time for Trump’s re-election bid.
In 2013, Roberts gutted the Voting Rights Act, fulfilling a goal he’d held since serving as a young attorney in the Reagan White House. His opinion in Shelby County v. Holder, decided 5-4 on ideological lines, nullified the act’s so-called pre-clearance provisions that had required jurisdictions with a history of voter discrimination to obtain DOJ or court approval before changing their election laws. Roberts based his nullification of a law that Congress had reenacted in 2006 on the absurdly disingenuous proposition that “things have changed dramatically” in the South, and that the era of discriminatory voting laws had effectively ended. In the wake of Shelby County, GOP officeholders in numerous states systematically weakened the voting rights of African-Americans.
In 2019, Roberts wrote for a five-justice majority in Rucho v. Common Cause, which declared that the Constitution poses no barrier to the radical gerrymandering of legislative districts the GOP has employed to entrench its control of legislatures in states like Wisconsin, and with it obtained the ability to equally radically gerrymander House districts. This year, the Roberts court set out to further gut the mechanisms of our democracy, starting with an extraordinary ruling forcing many voters in an April 7 Wisconsin election to choose between giving up the franchise and risking their lives.
The prize in that election was a seat on the state’s supreme court, which is dominated by a GOP majority. Even President Trump was focused on the race. With the coronavirus raging there, Wisconsin’s governor issued an order delaying the election, as happened in almost every other state. In a proceeding filed on behalf of the gerrymandered legislature’s Republican majority, however, the Wisconsin supreme court itself overrode the governor’s order, and ruled that the election had to go forward as initially scheduled.
The obvious risks of voting in person during the pandemic were compounded in Milwaukee, where only five out of 182 polling places were open, ensuring huge lines. And while the state allows its citizens to vote by mail, the system was overcome by absentee ballot requests, and many voters who made timely requests failed to get their ballots before election day, let alone in time to mail them back in.
Given those unusual circumstances, a federal judge issued an order (later upheld by an appeals court) requiring election officials to accept all mail ballots received by April 13, so as to avoid disenfranchising voters who didn’t receive ballots on time through no fault of their own. But days before the election, the Supreme Court ruled that no ballots mailed after election day could be accepted, even if they had been requested in a timely fashion. The Supreme Court purported to apply a principle against altering voting laws before an election, and asserted that the trial court had overreached by “fundamentally alter[ing] the nature of the election.” As Justice Ginsburg stated in dissent, the absurd, and profoundly unfair, result of the court’s ruling order was that voters who had not even received their ballots on election day were simply left without the ability to vote.
As it turned out, the GOP’s vote suppression scheme backfired. Thousands of enraged Milwaukee voters defied the effort to undermine their voting rights by standing in line for hours waiting to cast their ballots in the few polling stations that were open. The result was the defeat of the GOP supreme court candidate whose seat the entire scheme had been intended to preserve. Unfortunately, and predictably, though, a number of voters and poll workers contracted the virus in the succeeding days, and thus may have paid a heavy price for insisting on exercising the constitutional right to vote.
But while the Wisconsin GOP’s disenfranchisement scheme failed in April, the Roberts court was only beginning its effort to tilt the playing field in Trump’s favor in November. In June, the court refused to enjoin a patently discriminatory Texas law that allows all voters over 65 to cast their ballots by mail, but denies that same right to younger voters who fear the (now proven) risk that voting in person could pose a risk to their health. No justices dissented from the decision, but, in a statement accompanying the denial of a stay, Justice Sotomayor noted that the case raises serious questions of age-related discrimination, and may violate the 26th Amendment.
Earlier this month, in a 5-4 vote, the court voided an injunction against an Alabama law that poses onerous burdens on elderly and otherwise medically vulnerable citizens’ ability to vote by mail, requiring each absentee ballot to be notarized by two witnesses, in addition to being accompanied by a copy of a photo ID.
But the most significant, and outrageous, of the Supreme Court’s recent disenfranchisement decisions came down at the very end of last week, when the court upheld the voiding of a decision by Florida’s voters to grant the franchise to tens of thousands of their fellow citizens.
In 2018, 64 percent of Florida voters cast their ballots in favor of amending the state’s constitution to void a longstanding bar on allowing former felons to vote after serving their sentences. Soon after the election, however, the state’s GOP-dominated legislature enacted a bill effectively nullifying the will of the voters that was signed into law by newly elected governor Ron DeSantis. Florida has a practice of assessing massive monetary penalties on convicted persons that are virtually never collected, and indeed are often never fully calculated. The legislature, however, denied former felons the vote unless and until they paid all such fines, effectively annulling the will of the voters.
A trial court issued a preliminary injunction against application of the law, which was upheld on appeal and that, after a trial, issued a final decision largely voiding the legislature’s action, reasoning, among other things, that it amounted to an unconstitutional poll tax. But a conservative appeals court reversed his decision, and the Supreme Court let the appeals court ruling stand, thus ensuring that virtually all of the citizens that Floridians voted to grant the franchise in 2018 will be unable to vote in the November election.
In a dissent joined by two other justices, Justice Sonia Sotomayor pointed out not only the profound unfairness of the decision, but also its inconsistency with the court’s recent disenfranchisement jurisprudence. The court’s majority grounded its decision to disallow “late” absentee ballots in Wisconsin on the supposedly sacrosanct principle against changing voting rules soon before an election, because, the justices reasoned, it is important not to confuse voters. Yet, in Florida, felons who served their sentences have been registering to vote for months, as provided for under the only recently overturned trial court rulings.
As November approaches, and politicians continue to battle over how to conduct an election in the midst of a pandemic, we can assume that more voting rights cases will come before the Supreme Court. And if the track record set over the past several months is any indication, the court’s conservative majority will stand as a reliable bulwark in favor of GOP efforts to render it as difficult as possible for voters they believe may favor the other party to cast their ballots.
The same is true of lower appellate courts, which are now stocked to the gills with extreme right-wing jurists appointed by Trump. Indeed, an appellate court recently compounded the unfairness of Wisconsin absentee voting decision by upholding changes in Wisconsin’s early voting and other rules the court recognized were designed to suppress the votes of Democrats, concluding that such disenfranchisement is A-OK under the reasoning of Roberts’ recent pro-gerrymandering decision. As the appellate court put it: “If one party can make changes that it believes help its candidates, the other can restore the original rules or revise the new ones.”
But that, of course, cannot happen if such electoral rules effectively entrench one party in power—making it impracticable to defeat it at the ballot box.
Given that right-wing jurists are willing to engage in increasingly audacious gambits to undermine voting rights, which are, after all, the very foundation of our democracy, it is becoming all the more clear that—if the Democrats succeed in regaining control of the White House and the Senate in November—one of their first acts must be to rebalance the judiciary by expanding the Supreme Court and lower courts, and rapidly confirming new judicial nominees.