The Supreme Court’s most recent term was a fiesta of vote suppression, and as Ian Milhiser observes this is a long-standing goal of the Chief Justice that will be pursued more and more aggressively:
Consider Alabama. The former home of George Wallace has a strict voter ID law requiring voters to show ID in order to cast a ballot. In 2015, the state attempted to close down DMV offices in predominantly black counties, effectively keeping many black voters from obtaining the ID they needed to vote — though the state largely backed down due to a federal probe.
When the Voting Rights Act dies, states will be free to emulate Alabama — and to go much further. Polling places could be closed in predominantly black neighborhoods. Sunday voting and other practices preferred by voters of color will be eliminated. Gerrymandering will thrive. State lawmakers seeking to rig elections will grow more and more aggressive, and the Supreme Court will look the other way.
The Voting Rights Act prohibits any election law that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” Thus, a plaintiff challenging such a law does not need to prove that the people behind that law acted with racist intent. Rather, they only have to prove that the law would have the effect of making it harder for people of a certain race to vote.
It wasn’t always this way, however. In 1980, the Supreme Court held in Mobile v. Bolden that a Voting Rights Act plaintiff must show that the law they are challenging was enacted with a “racially discriminatory motivation.” Merely showing that the law would have a detrimental impact on minority voters was not enough to prevail.
Two years after Mobile, President Reagan signed the modern day version of the Voting Rights Act, establishing the rule against any law that “results” in racial voter disenfranchisement. He did so over the strenuous objections of a young Justice Department attorney named John Roberts. As an aide to Attorney General William French Smith, Roberts joined with a conservative faction within the Reagan administration that hoped to leave Mobile untouched.
In Perez, a 5-4 Supreme Court largely went along with Texas’ scheme. “Whenever a challenger claims that a state law was enacted with discriminatory intent,” Justice Samuel Alito wrote for the Court, “the burden of proof lies with the challenger, not the State.” It wasn’t enough, moreover, to prove that the state’s districts were intentionally drawn to disadvantage voters of color in 2010. The plaintiffs in Perez had to prove for a second time that the exact same districts were drawn with racist intent when they were reenacted in 2013.
According to Alito, the Perez plaintiffs could not clear this bar. The only direct evidence brought to our attention suggests that the 2013 Legislature’s intent was legitimate,” Alito claimed. “It wanted to bring the litigation about the State’s districting plans to an end as expeditiously as possible.”
Take a moment to get your head around that logic. Alito’s conclusion is that Texas’ maps weren’t drawn to preserve a racial gerrymander, they were drawn to shut down litigation challenging a racial gerrymander. And that was enough to defeat the plaintiffs’ claims in Perez.
John Roberts’ America, in other words, is a place where black voters wait hours to cast a ballot, while white voters waltz in and out of the polls. It is a place where poor voters must spend four hours on the bus to get they ID they need to vote. It is a place where mapmakers decide in advance who will win elections. And it is a place where the mapmakers are white.
And this America will soon be our America.
On voting rights, Kavanugh represents a consolidation of power more than a transformation of power. We’ll return to this point imminently, but on balance Kennedy was pretty terrible, and while he did break from Republicans on a couple of non-LBGT related civil rights issues during his odd, one-off lurch to the left in the 2016 term, on voting rights he was consistently awful. But had Obama or Clinton been able to nominate Kennedy’s replacement, the anti-democratic trend could have been reversed; now it will accelerate.
As a companion piece, Eric Levitz’s piece about the threat Republican elites pose to democracy is excellent. While pursuing the agenda they’re committing to with their current coalition, they have to undermine the electoral process because it’s that or lose power.