The Washington PostDemocracy Dies in Darkness

Opinion The future of voting rights is looking pretty bleak

(Jonathan Ernst/Reuters)
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On Tuesday, the Supreme Court heard cases that could end up delivering a serious blow to voting rights. The questioning from the conservative justices suggested that they were prepared to uphold two voting restrictions that had been struck down by a lower court.

Which makes it an apt day for the release of a new report that paints a bleak picture of the future of voting rights at the hands of the Supreme Court.

The report is from Take Back the Court and the Equal Justice Society, which favor Supreme Court reform. It seeks to take stock of the long-term prospects for voting rights, now that the conservative justices enjoy a 6-to-3 majority.

The report argues that the Supreme Court’s record on voting rights cases under Chief Justice John G. Roberts Jr. has been particularly pernicious for voters of color. It reprises some of the history: In 2013, Roberts presided over the gutting of the provision of the Voting Rights Act that required some states and localities with a history of discrimination to get federal preclearance for changes in voting rules.

In part due to that, the report argues, GOP-controlled states rushed to pass voting restrictions that were ostensibly neutral but had a disproportionately negative impact on minorities:

More than 1,600 polling places closed down between 2012 and 2018 in locations previously covered by VRA preclearance. These closures disproportionately harm Black and other minority communities, and Black voters now wait on average more than 45 percent longer than white voters to cast a vote.

The report also recounts a host of other recent Supreme Court decisions that went against voting rights advocates. Among these was the court’s 2018 ruling that upheld most of the gerrymanders done by the state legislature in Texas, which plaintiffs had argued were drawn with deliberately discriminatory intent to dilute the power of minority votes.

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Thus far, then, the Supreme Court has hobbled two key pieces of the VRA. In both cases, the court erred on the side of presuming “white racial innocence” on the part of state legislators implementing voting restrictions, as Ian Millhiser has put it.

The report develops this idea by arguing that much of this sort of jurisprudence flows from a “colorblind” judicial philosophy often adhered to by conservative justices:

The hallmark of colorblindness is the idea that race is irrelevant to judicial decisions — even when centuries of racism necessitate racially conscious judicial decision-making. Purportedly neutral voting requirements, like requiring identification for all voters, have a disparate impact on voters of color, a fact that colorblind jurists ignore, despite extensive evidence to the contrary.

This has relevance now. The cases before the Supreme Court involve challenges to one measure that tosses out votes cast in the wrong precinct and another that invalidates most third-party collection of ballots (derisively called “ballot harvesting”), which plaintiffs argue disproportionately burdens minorities.

The question is not just whether the court will uphold those two laws. It’s also whether the court will take this occasion to gut still another part of the VRA — Section 2 — which bars voting laws that have an adverse impact on minorities, given the “totality of the circumstances.”

The court might do this by, say, creating a test for whether a voting law adversely impacts minorities that is extremely demanding to meet. Such a test might require that the discriminatory impact must be overwhelming and that state legislatures do not need to provide much of a rationale justifying the law in question.

After listening to the oral arguments, voting law expert Rick Hasen concluded that this is a distinct possibility:

The Court conservatives could well coalesce around a test that requires both the plaintiffs show a substantial racially discriminatory impact AND that requires the state to produce little evidence of an antifraud (or sound election administration) reason to enact a law. The big question is exactly what that standard looks like.

If this decision goes badly, the Take Back the Court report concludes:

The likeliest effect will be to disenfranchise the very voters for whom the [Voting Rights Act] was enacted — minority voters — who have been killed, beaten, threatened, taxed, and systematically blocked from voting throughout American history.

The broader picture here is that GOP legislatures are racing forward in many states with new voter suppression and anti-majoritarian efforts. At the Conservative Political Action Conference, former president Donald Trump basically declared straight out that the future of the GOP depends on making it harder to vote, and Republicans are openly boasting that extreme gerrymanders will help them take back the House next year.

But such efforts will be challenged in court, and the fate of those court battles will help determine how successful that overall anti-majoritarian project proves in the long run. As Aaron Belkin, the director of Take Back the Court, put it in a statement: “Conservatives have been working in coordination for decades to achieve the current supermajority to solidify minority rule.”

And so, if the Supreme Court does create a high hurdle for determining whether a voting restriction has racially discriminatory impact, it will likely be seen by GOP state legislatures as a green light to keep it up, and then some.

Read more:

Greg Sargent: Biden’s next big move could deliver a crippling blow to Trumpism

Jennifer Rubin: The White House and Congress must beat back attacks on voting rights

Ruth Marcus: With voting rights already under attack, the Supreme Court could deal another big blow

Paul Waldman: Republicans will do anything to suppress the vote. The courts will help them.

Eugene Robinson: The Republican Party is making Jim Crow segregationists proud