Thanks to the six right-wing justices on the Supreme Court, our country has just become less democratic. In twin rulings issued Thursday, they said that states can make it harder for people to vote and they made it easier for big donors to sway elections in secrecy.
You wonder if July 1, 2021, might come to be known as Oligarchy Day.
It should certainly be the day when advocates of democracy and equal rights rip off their blinders and stop pretending that the court’s conservative majority is in any way impartial or nonpartisan. The decisions in both cases could have been written by the Republican National Committee, attorneys for the Koch brothers and advocates of voter suppression.
In a much-anticipated case on voting rights, the court let stand Arizona laws requiring election officials to discard ballots cast in the wrong precincts and prohibiting campaign workers, community activists and others from collecting ballots.
The larger implication: The ruling in Brnovich, Attorney General of Arizona v. Democratic National Committee will weaken Section 2 of the Voting Rights Act, the most important part of the law left standing after the court’s 2013 decision gutting Section 5 of the law. That part had required Justice Department pre-clearance of voting rules changes in places that had a history of racial discrimination.
In an eloquent dissent rooted in fact, history and a respect for Congress’s right to legislate under the 15th Amendment, Justice Elena Kagan demolished the majority’s crabbed view of democracy. She noted that the Voting Rights Act “confronted one of this country’s most enduring wrongs” and “pledged to give every American, of every race, an equal chance to participate in our democracy.”
She concluded: “That law, of all laws, deserves the sweep and power Congress gave it. That law, of all laws, should not be diminished by this Court.”
But it was.
And in Americans for Prosperity Foundation v. Bonta, the court voided a California law requiring charities that solicit contributions in the state to report the identities of their donors.
Here, the dissent came from Justice Sonia Sotomayor. (Both dissents were joined by Justice Stephen G. Breyer.) Sotomayor warned that the majority’s analysis “marks reporting and disclosure requirements with a bull’s-eye.” She added: “Regulated entities who wish to avoid their obligations can do so by vaguely waving toward First Amendment ‘privacy concerns.’”
Thus the world of dark-money politics is poised to become darker still.
The conservative justices also showed — yet again — that the right’s oft-stated commitment to “states’ rights” is situational. Arizona was free to make it harder to vote, but California was not free to let citizens know who is financing entities enmeshed in their state’s politics.
These decisions send three important messages.
The first is to Sens. Joe Manchin III (D-W.Va.) and Kyrsten Sinema (D-Ariz.) and other senators still reluctant to overturn or reform the Senate’s filibuster rules. Their choice really is between defending the filibuster and defending democracy. If Manchin and Sinema allow Republicans in the Senate to kill all efforts to enforce voting rights and to check the power of big money in politics, they will be throwing in the towel on democracy itself.
Manchin, to his credit, has put together a series of provisions aimed at defending voter rights in states where Republican legislatures are engaged in both overt and subtle efforts at voter suppression. If he can’t get 10 Republicans to join him (and all the evidence says he won’t), he has to decide that his (small-d) democratic commitments take precedence over his reluctance to alter the Senate’s rules.
Second, Congress should think again before it strips the For the People Act of its provisions creating strong incentives for federal candidates to rely on small contributions. Small-donor incentives are, at the moment, the most effective way to push back against the Supreme Court’s solicitude toward the role of the wealthy in our political system.
The third is to all who have so far resisted the urgency of battling conservative Republicans’ systematic effort to pack the court with justices who will do their bidding.
From the GOP blockade against President Barack Obama’s appointment of Merrick Garland to the 2020 confirmation of Amy Coney Barrett a little more than a week before Election Day, Republicans have been ruthless in using raw power to tilt court outcomes. Two votes on the court could (and likely would) have shifted the outcomes of Thursday’s decisions the other way.
Conservative justices may not vote as a bloc on every issue, but they have held together firmly when it comes to issues affecting democracy itself. Court enlargement must now be on the agenda of anyone who cares about protecting voting rights and our increasingly fragile system of self-rule.