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The Vote Suppression Industrial Complex


It continues to march on:

Start with Wisconsin, the epicenter of the voting wars this election cycle. In April, in an instantly notorious 5–4 decision, the Supreme Court forced thousands of residents to choose between voting in person during a pandemic and forfeiting their right to vote. On June 29, the 7th U.S. Circuit Court of Appeals added insult to injury, greenlighting the state’s sharp curb on early voting. For years, Wisconsin’s local governments set their own election rules, and some allowed as many as six weeks of early voting—until Republican legislators set the outer limit at two weeks. A federal judge had repeatedly blocked this cutback, finding that it disproportionately affected racial minorities.

After inexplicably sitting on the case for more than three years, the 7th Circuit reversed that decision, letting the cuts take effect. Judge Frank Easterbrook’s opinion for the court announced a new constitutional rule: Lawmakers “are entitled to consider politics when changing the rules about voting,” he declared. In other words, Republican legislators can manipulate election laws to make it more difficult for Democrats to cast a ballot. Easterbrook derived this alleged principle from Rucho v. Common Cause, in which SCOTUS held that federal courts can’t stop partisan gerrymandering. But Rucho merely found that federal judges are incapable of determining when political redistricting “goes too far”; it has nothing to say about other election laws, even if conservative judges desperately wish it did.

Solely in terms of its substantive consequences, I think there’s a good chance Rucho will prove to be even more damaging than Shelby County, and Wisconsin in particular has become one massive anti-democratic feedback loop.

Moving on:

The news out of Florida, another swing state infamous for assaults on suffrage, is no better. In May, U.S. District Judge Robert Hinkle held unconstitutional a Florida scheme that forced ex-felons to pay court-imposed fines and fees before regaining the right to vote. This scheme effectively imposed a poll tax, denying people the ballot unlessthey had enough money to pay court debt. Moreover, it was totally unworkable: Florida has no idea how much formerly incarcerated people owe and no way to find out. As a result, Hinkle explained, even those ex-felons with the means to pay off court debt could never really be sure they paid in full. And if they miscalculated, they could be prosecuted and imprisoned.

Hinkle devised a system wherein formerly incarcerated people could ask the state to reveal how much court debt they owe. If the state could not provide an answer within three weeks, the individual regained the right to vote. Furthermore, no one could be denied the ballot simply because they couldn’t afford to pay their court debt, since wealth-based disenfranchisement violates the constitution.

On Wednesday, the 11th U.S. Circuit Court of Appeals blocked Hinkle’s order, allowing Florida to resume denying registration to people convicted of felonies.And, in a highly unusual move, the court accepted Florida’s request to hear the case en banc before a three-judge panel had the opportunity to hear it. There is only one plausible reason the court, which Donald Trump recently flipped, would’ve taken this rather shady step: The conservative majority likely worried that a three-judge panel would include two liberals who would uphold Hinkle’s order, keeping the Florida scheme on hold through the November election. So they short-circuited the appeals process, handing the state an instant victory by lifting Hinkle’s injunction and a probable long-term victory by siding with Florida down the road.

Republican judges have gotten as good at throwing up roadblocks to the right to vote as Jim Crow southern judges were at nullifying federal court orders.

And, of course, the most important vote suppression machine remains the Supreme Court of the United States:

Why? The majority did not deign to explain itself, but it presumably relied on the “Purcell principle.” This doctrine bars courts from altering voting laws shortly before an election under the theory that last-minute changes might “confuse” voters. In the hands of a conservative court, the Purcell principle has morphed into a perverse rule that voters always lose. SCOTUS consistently holds that voter suppression laws don’t burden the constitutional right to vote. Yet when a court tries to alleviate voter suppression laws, SCOTUS stops it—because making voting easier might somehow confuse voters. Put simply, this Supreme Court believes that voter suppression laws don’t burden the right to vote, but decisions blocking those voter suppression laws do.

You couldn’t give a better one-paragraph description of John Roberts’s stance toward voting rights.

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