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The Supreme Court and Voter Suppression

No matter who wins this election, the Roberts Court is largely to blame for stripping away voting protections we know now more than ever we still needed.

November 7, 2016

I wonder what goes through the mind of U.S. Supreme Court Chief Justice John Roberts these frantic days as he reads one account after another of voter suppres­sion in the 2016 elec­tion. Does he regret his decis­ive vote in Shelby County v. Holder, the 2013 decision that struck down the preclear­ance provi­sion of the Voting Rights Act?

Does he acknow­ledge, even to himself, that by strip­ping federal offi­cials of much of their power to preclude discrim­in­at­ory elec­tion rules he has disen­fran­chised count­less Amer­ican citizens who have been blocked from voting this elec­tion cycle? Does he feel bad, or silly even, about proclaim­ing how “differ­ent” things are today when it comes to racial discrim­in­a­tion in voting? Things don’t look so differ­ent to that 100-year-old woman in North Caro­lina whom Repub­lic­ans tried to disen­fran­chise, do they?

The Shelby County decision was dubi­ous when it first was issued but it looks even worse today. The court’s major­ity, all five of its conser­vat­ive justices, invited Congress to fix what the court had said was broken in the law but surely no justice ever believed that such legis­lat­ive amend­ment would happen. And, indeed, despite a few Repub­lican lawmakers in Congress who declared their support for a newly consti­tuted Voting Rights Act, and despite Demo­cratic efforts to fix the law, the meas­ure has never come to a vote in a GOP-controlled Congress.

But legis­lat­ive inac­tion wasn’t just predict­able or a possib­il­ity when Shelby County was issued. It was a certainty — and Roberts and company knew or should have known it. The Repub­lican Party, on both a national and local level, had for years before Shelby County made voter suppres­sion a stra­tegic and tactical prior­ity. We know this because the pres­id­en­tial elec­tion of 2012, the one before the Court considered Shelby County, was rife with voter suppres­sion efforts in some of the very juris­dic­tions covered by the preclear­ance provi­sion.

I know this person­ally because I was writ­ing about those efforts in The Atlantic four years ago in the run-up to the Obama-Romney pres­id­en­tial elec­tion and The Nation’s Ari Berman was cover­ing it even more extens­ively between 2010 and 2012. We both were writ­ing at the time about voter suppres­sion efforts in South Caro­lina and other states. For example, Texas had enacted an oner­ous (and consti­tu­tion­ally dubi­ous) voter ID law even before Shelby County came down — and then imme­di­ately broadened the scope of the law when the Supreme Court gave state lawmakers permis­sion to do so.

Although fewer public offi­cials and polit­ical oper­at­ives were as blunt during the 2012 race as they are today about the need for voter suppres­sion there was plenty of compel­ling oral and docu­ment­ary evid­ence even then to estab­lish that the Voting Rights Act’s preclear­ance provi­sion had not outlived its useful­ness. That explains why so many states—  North Caro­lina, Texas, Alabama, Missis­sippi, and Flor­ida, for example — were so quick to pounce with suppress­ive meas­ures once Shelby County came down.

The Chief Justice was right about one thing. The current iter­a­tion of voter suppres­sion tactics by Repub­lic­ans was and is not just limited to south­ern states. We see suppres­sion today in Wiscon­sin and Ohio and Kansas and other juris­dic­tions that were not covered by the preclear­ance provi­sion of the Voting Rights Act. In this sense, as the Court noted, the law was under-inclus­ive. It did not go far enough.

But how differ­ent voter iden­ti­fic­a­tion laws would be today, and how many more eligible voters would have been able to cast a ballot this elec­tion cycle, if the Court had issued a ruling that encour­aged Congress to fix the law while keep­ing the preclear­ance provi­sion in place. A nation­al­ized preclear­ance provi­sion, one that treated every juris­dic­tion equally, one that preven­ted North­ern and Midwest­ern voter suppres­sion as much as it did South­ern suppres­sion, would be a very valu­able law indeed today.

But that’s just a dream. The five conser­vat­ives on the Supreme Court in 2013 were never going to invite Congress to extend federal power over the states. John Roberts had made it clear three decades earlier, as a lawyer in the Reagan admin­is­tra­tion, that he believed the preclear­ance provi­sion was an affront to feder­al­ist prin­ciples. But he had no way of know­ing in June 2013 that Donald Trump would within three years become the Repub­lican nominee for pres­id­ent and that voter suppres­sion and the disen­fran­chise­ment of minor­ity voters would become a pillar of his campaign.

So I wonder what John Roberts thinks these days when he reads about all the ways in which one of his most conten­tious opin­ions has been used by one party to cata­pult the coun­try back gener­a­tions on voting rights; to make it harder for the elderly and the poor and communit­ies of color to exer­cise a right for which they had fought so vali­antly half a century ago. No matter who wins this elec­tion the rise of voter suppres­sion, of discrim­in­a­tion in elec­tions, is a disaster for demo­cracy. And no matter who wins the Roberts Court is largely to blame for strip­ping away protec­tions we know now more than ever we still needed.

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center for Justice.

(Photo: Think­stock)