In 2013, the Supreme Court’s five-member conservative majority gutted the Voting Rights Act by ruling that states with a long history of racial discrimination in their conduct of elections no longer needed to clear changes to voting laws with the federal government, holding that “things have changed dramatically” since the act was passed in 1965.
To this, Justice Ruth Bader Ginsburg, who died Friday at 87, memorably dissented: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet,” she wrote. Her words were prescient. Doing away with pre-clearance allowed states such as Georgia and Texas to implement new restrictions on voting, such as stricter voter ID laws, closing polling places in precincts serving minority communities and adding new barriers to voter registration that disproportionately impacted voters of color.
That’s not the only way the court, led by Chief Justice John G. Roberts Jr. — who was appointed by President George W. Bush — has made it more difficult to vote in the past few years: In 2018, it approved efforts by Republican-controlled states such as Ohio to remove voters from the rolls simply for skipping a few elections (making voting, in effect, a use-it-or-lose-it right), and last year it ruled that federal courts did not have the power to review gerrymandered maps in states such as Wisconsin, where Republicans got less than half of the overall votes cast for state assembly races in 2018 but wound up controlling almost two-thirds of the seats.
But these decisions are probably just a preview of what’s to come if President Trump gets his way and the Senate fills Ginsburg’s seat by confirming a sixth conservative justice to the court this year. A 6-to-3 conservative majority will embolden the court to strike down what’s left of the Voting Rights Act, encouraging GOP-controlled states to pass even more sweeping restrictions on voting and making it nearly impossible for citizens to counteract gerrymandered maps.
The court has already embraced many GOP voter suppression efforts. But previously radical positions that were only embraced by some current members of the court or GOP-appointed judges in the lower courts could soon go from fringe to mainstream. And the long lines, rejected mail-in ballots and voter confusion that defined the primary season could become the new normal in American politics.
When the Roberts court eliminated the VRA’s pre-clearance requirement in Shelby County v. Holder, it left in place another part of the law, Section 2, that allows restrictions on voting to be struck down if they result in discrimination against voters of color, regardless of evidence of intent. But the court could effectively nullify Section 2 by requiring proof of intentional discrimination to void an election change, requiring plaintiffs to find smoking gun evidence to prevail in the courts, which is very rare in this day and age.
Roberts took this position in the 1980s when he was a young lawyer in the Reagan Justice Department, seeking to preserve a lower-court ruling finding that intentional discrimination was needed to win Section 2 cases. “Violations of Section 2 should not be made too easy to prove, since they provide a basis for the most intrusive interference imaginable by federal courts into state and local processes,” he wrote in 1981.
Roberts lost that fight when Congress reauthorized the VRA a year later and said that minority voters only had to show that a voting change had the effect of discriminating against them, not that it was intentional. But Republicans have resurrected Roberts’s original position. After the NAACP argued that the selection of appellate judges in Alabama violated the VRA (at the time, the state was around 26 percent Black but all 19 of its appellate judges were White), the state responded that Section 2 was unconstitutional. Though Alabama did not prevail at the 11th U.S. Circuit Court of Appeals in its attempt to throw out the lawsuit, its then-solicitor general, Andrew Brasher, is now a Trump-appointed judge on that circuit, and his then-brief was cited favorably by another Trump-appointed judge on the circuit, Elizabeth Branch, in her dissent. (In a 2018 case from Texas, justices Clarence Thomas and Neil M. Gorsuch argued that Section 2 shouldn’t prohibit racial gerrymandering, either.) Roberts wrote in 2013 that his Shelby opinion “in no way affects the permanent, nationwide ban on racial discrimination in voting found in §2,” but there could now be another vote on the court to revisit that.
GOP-appointed judges are already using another Roberts decision as a justification to make it more difficult to vote. In Rucho v. Common Cause, Roberts ruled that federal courts could not review challenges to partisan gerrymandering because these were inherently political decisions that could only be resolved at the state level. Though the decision only applied to redistricting, lower court judges have recently cited his rationale to allow new restrictions on voting: In June, the Seventh Circuit upheld efforts by Wisconsin Republicans to limit early voting, with Judge Frank Easterbrook writing that “legislators are entitled to consider politics when changing the rules about voting,” ignoring that the whole purpose of voter suppression is to stack the political system against one party or set of voters, such as African Americans. In Wisconsin, for example, Black voters were three times more probable than Whites to be deterred from voting by the state’s voter ID law in 2016, and a district court found that early voting hours were cut “to suppress the reliably Democratic vote of Milwaukee’s African Americans.” If the Supreme Court were to find that restrictions on voting such as voter ID laws or cutbacks to early voting were merely political disputes not reviewable by the courts instead of a grave constitutional injury, that would make them nearly impossible to strike down.
A six-member conservative majority could also block efforts to reverse attacks on democracy. In Roberts’s Rucho decision, he pointed to other solutions to solve the problem of gerrymandering, such as independent redistricting commissions, writing that “numerous other States are restricting partisan considerations in districting through legislation.” But in 2015, Roberts furiously dissented to a 5-to-4 opinion written by Justice Anthony M. Kennedy upholding Arizona’s independent redistricting commission, saying it usurped the power of the state legislature. “No matter how concerned we may be about partisanship in redistricting, this Court has no power to gerrymander the Constitution,” he wrote. With Kennedy and Ginsburg gone, there is almost certainly majority support to strike down one of the few avenues left to combat gerrymandered maps, and more room for Roberts to adopt the position he took in the Arizona case, not his more conciliatory position toward independent commissions from Rucho.
So, too, could the conservative court block congressional efforts to alleviate voter suppression. The House has passed legislation to restore and modernize the Voting Rights Act and to make it easier to vote through policies such as nationwide automatic registration and early voting. But the court could say Congress impinged on states’ rights in enacting these measures. It might not matter where Roberts lands on this issue, because there would be five votes without him. The court already hasn’t been shy in overruling broad majorities of Congress in the past — the 2006 reauthorization of the Voting Rights Act that Congress invalidated in Shelby was approved 98-0 in the Senate and 390-33 in the House.
While the court’s reactionary stances on voting rights could have devastating long-term consequences for democracy, it could also have a major impact on the 2020 election. Already, the court’s conservative majority has declined to ease voting requirements during a pandemic in states such as Wisconsin, Alabama and Texas — in addition to upholding a Florida decision denying voting rights to people with past felony convictions who’ve completed their sentences but still owe money from unpaid fines — a result Justice Sonia Sotomayor called a “trend of condoning disenfranchisement.”
Trump has admitted that he’s relying on the federal courts — including the Supreme Court — to take his side in any disputes over how ballots are counted in November. “We’re counting on the federal court system to make it so that we can actually have an evening where we know who wins. Not where the votes are going to be counted a week later or two weeks later,” the president said in North Carolina after Ginsburg’s death. A few days later, he said that nine justices were needed on the court to resolve litigation over “tens of millions of ballots, unsolicited.”
Roberts has reliably sided with the court’s conservative majority — and often led the charge — when it comes to curbing voting rights. But he has also been careful to preserve the integrity of the court at key moments, such as rejecting the administration’s plan to put a question about U.S. citizenship on the 2020 Census. Yet with a 6-to-3 court, Roberts is no longer the swing justice on a bench with a majority of far-right conservatives. That increases the likelihood of a Bush v. Gore scenario where the court sides with Trump to hand him the election.
In that scenario, every undemocratic aspect of our political system will have converged into one — a president who lost the popular vote by nearly 3 million votes and a Senate where Republicans represent about 15 million fewer Americans will have appointed the judges responsible for locking in power for their party for the next four years and well beyond. It’s not merely a rightward tilt, it’s a strong enough majority to entrench a partisan advantage that could nullify the voice of voters, particularly voters of color, and leave them with little constitutional recourse.