In the November 2020 election, voters faced institutionalized corruption, a toxic media environment, alleged manipulation by monied interests and foreign adversaries and numerous mindless and malicious impediments to voting.
Voters, especially those of color, waited in long lines, navigated the complexities of postal voting, endured a deluge of misinformation, and voted despite the fact that their districts are so gerrymandered that their votes count for little.
Since the election, 43 states have introduced 253 bills that make voting even harder in many ways. Indeed, in one of the most restrictive and racially loaded voter suppression laws yet, Georgia has just banned providing sustenance to those trapped in long lines waiting to vote. Other provisions of the law seem calculated to lengthen those lines.
In oral argument in Brnovich v DNC earlier this month, the conservative Supreme Court justices seemed amenable to allowing states broad freedom to restrict voting rights. The court is likely to allow Arizona to restrict who can collect ballots from voters without access to postal facilities and to mandate that ballots cast in the wrong precinct simply be thrown in the trash.
The Supreme Court has given the nod to state restrictions on voting in the past, including voter disenfranchisement through aggressive purging of voter rolls and pretextual claims of addressing theoretical voter fraud to justify denying legitimate voters the chance to cast a ballot. But this hands-off judicial attitude goes out the window when assessing legislation designed to protect the fundamental constitutional right to vote.
The House recently passed the For the People Act of 2021, H.R. 1, a bill that comprehensively combats voter suppression and disenfranchisement. This is vital electoral reform, but a quiet anti-voting rights and anti-democracy revolution has been underway at the Supreme Court for years now, and H.R. 1 is likely dead on arrival.
Electoral System Needs H.R. 1 Reforms
It is important to understand the new legislative proposal, to see how in need of reform the electoral system is.
H.R. 1 automatically registers eligible voters and enables same-day registration. This is necessary to combat state legislatures from purging millions of voters from electoral rolls, which particularly impacts minority voters.
The bill promotes campaign-finance transparency by requiring disclosure of donors to “dark money” political groups. Without it, unprecedented and untraceable amounts of money are flowing into the pockets of politicians when political ethics and government oversight are at their lowest.
It also restricts gerrymandering, requiring states to establish independent redistricting commissions, instead of letting self-interested politicians choose their voters. Gerrymandering is so bad that in recent elections, in four states, Republicans won a majority of state legislative seats after winning only a minority of the total statewide vote.
Supreme Court Lays Groundwork for Overturning Voting Rights
But not only will none of this will ever be implemented under the current Supreme Court, Chief Justice John Roberts has been laying the groundwork for overturning the existing Voting Rights Act, abolishing campaign-finance restrictions entirely, and entrenching minority rule through gerrymandering.
Understanding what the court has already done reveals what we can expect in the future.
In 2013, in Shelby County v. Holder, Roberts struck down, a central component of the Voting Rights Act: requiring states with a history of suppressing African American votes to preclear changes to their election rules with the Justice Department. Roberts struck down the old formula for who was covered by this rule, saying it unfairly discriminated against those states—one type of discrimination that Roberts does recognize. Immediately, most of those states enacted voter suppression measures.
Last year, Democrats proposed the John Lewis Voting Rights Advancement Act, a bill establishing a new coverage formula. If similar legislation passes this year, Roberts will respond in one of three ways, all of which will crush this vital voter protection mechanism.
He will either say the formula is too narrow and thus it unfairly singles out some states. Or he will say it is too broad, and lacks “congruence and proportionality”—code words for going too far in protecting civil rights. Or he will strike down Section 5 of the Act entirely, saying that preclearance is unconstitutional for interfering with “states’ rights”—that would prevent Congress even trying again with a new formula.
The court’s campaign against campaign-finance regulation is equally grim. It did not start with Citizens United, and it will not end there.
First, the court barred restrictions on unlimited spending by self-funded candidates.
Then, it allowed unlimited spending by unions and corporations. Next, it struck down limits on an individual’s total contributions made to all candidates as unnecessary with limits on contributions to individual candidates. But next we can expect those individual limits will be struck down as ineffective now that the aggregate limits have gone.
Finally, we can expect that spending disclosure rules will also be declared unconstitutional on First Amendment grounds. The public will not even get to know what money is being given to whom, or why.
When it comes to gerrymandering, most of the damage has already been done. Roberts conceded in 2019 in Rucho v. Common Cause that partisan gerrymandering is “incompatible with democratic principles,” but said the court would do nothing to address it. On paper, racial gerrymandering is policed by the court, but in reality, Rucho gives the greenlight to egregious racial gerrymanders, so long as those drawing the lines conveniently claim their motives were political.
The chief justice is determined to take voter protection out of the hands of Congress and he has amassed the power to do so by working quietly and incrementally through hard-to-read judicial decisions that ordinary voters do not understand.
Congress and the American people should hold the court accountable for its anti-democratic agenda and make clear that if court reform is necessary to achieve democratic reform, so be it.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Tonja Jacobi, is the Stanford Clinton Sr. and Zylpha Kilbride Clinton research professor of law at the Northwestern University Pritzker School of Law.
Matthew Sag, is the Georgia Reithal professor of law and associate dean for faculty research and development at Loyola University Chicago School of Law.