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.