In a 5-4 decision, the Supreme Court recently ruled that Alabama will be allowed to hold elections this year using gerrymandered voter maps that could still be deemed illegal. Rendered through the shadow file, that is, with minimal explanation, this decision is another harbinger of this Court’s “burn” mentality toward the Voting Rights Act (VRA).
We face an existential threat as a democracy, as we watch our highest court strip us of one of our most fundamental rights in broad daylight. The question is, what are we going to do about it? Because rest assured, the Court will continue to erase the right to vote, especially for people of color, unless and until it is stopped.
Federal legislation would certainly help, but it would also inevitably run into the same problem that the VRA had, namely the Supreme Court chopping block. To bring about lasting change by restoring meaningful voting rights in this country, we must reform the Supreme Court.
Without court reform, any legislation enacted to restore the right to vote risks suffering the same fate as the VRA. A reminder of how this fate unfolded in the hands of our highest court:
In 1965, at the height of the civil rights movement, Congress and President Johnson came together in an overwhelming act of bipartisanship to enact the VRA. The VRA would go on to become one of the most successful pieces of legislation in our country’s history in terms of expanding access and ending racial discrimination at the ballot box.
That is, until the Supreme Court gutted the VRA in 2013 with its decision in Shelby County vs. Holder and again last year Brnovitch vs. DNC. With these two cases, the Supreme Court eliminated safeguards that had previously prevented states from engaging in blatant voter suppression, particularly voter suppression laws aimed at denying people of color access to the ballot box.
The Supreme Court’s war on the franchise in this country does not end there. The Court, in its 2019 decision in Rucho c. Common cause, also gave states permission to engage in partisan gerrymandering. Gerrymandering reduces voters’ ability to decide who represents them by almost guaranteeing which party will win certain races. It makes a mockery of our already deeply strained democracy. Rucho is now aggravated by Merrill v. Mulliganand the apparent likelihood that the Court foreshadows a similar tolerance for racial gerrymandering.
Let us also not forget the Supreme Court’s decision in Citizens United v FEC, who poured black money into our elections. It is because of the Supreme Court that we now live in a “pay to play” reality, in which many elections are influenced, even decided, by millions of dollars in attack advertisements paid for by big money groups. black with Orwellian-sounding names.
Yes, we need a federal law to repair the damage done by the Supreme Court. However, we must be honest about the almost certain fate that awaits such legislation. Any federal legislation that manages to pass Congress and be signed into law will be immediately challenged and will almost certainly end up in the same Supreme Court that created the problems the legislation is meant to solve. If we want to protect the right to vote and the integrity of elections in this country, we must reform the Supreme Court. Or, we are forced to repeat this same cycle of legislative molestation by the Court.
The Supreme Court has its own crisis of legitimacy, as evidenced by the decline in public approval of it. The Court is increasingly seen not as an objective deliberative body guided by law and facts, but as a partisan body controlled by politicians in robes. This is because the Supreme Court has been intentionally overcrowded to make it hyperpartisan and to make its rulings politically predictable.
Senator Mitch McConnell manipulated Senate standards in 2016 to prevent President Obama from filling the Supreme Court seat left vacant when Justice Scalia died. Merrick Garland, a judge at the time, was nominated by President Obama to the Supreme Court and should have filled Scalia’s seat. Instead, McConnell declined to give Garland a confirmation hearing, keeping the seat vacant for more than a year until President Trump could nominate Neil Gorsuch to fill it. Fast forward to 2020, and President Trump and Senator McConnell again ignored Senate norms to block confirmation of Amy Coney Barrett while voters voted for President Biden.
This partisan packaging of the Court is now proving to be pivotal, as cases are decided by the votes of Justices Gorsuch and Barrett. This includes the decision in Brnovich, which upheld voter suppression laws in Arizona. This case would almost certainly have gone the other way, with the Arizona laws overturned, had President Obama and President Biden been able to fill the seats currently occupied by Gorsuch and Barrett. The same goes for the recent 5-4 decision in Merrill that, at least for now, blessed the gerrymandered maps of Alabama.
When this conservative supermajority continues to show us what they are, at some point we have to believe them. We are in a voting rights crisis in this country because of the Supreme Court of the United States. To safeguard the right to vote, we must reform the Court.
Democracy and elections, importance of courts, Supreme Court, right to vote