On Thursday morning, Florida Governor Ron DeSantis (R) signed a bill restricting postal voting, preventing voters from registering through voter registration campaigns, and potentially prohibiting volunteers from eating food for voters waiting in line to cast their votes and give water.
Many provisions of this new Florida law mirror similar provisions in a Georgia voter suppression law that went into effect last March. Georgian law also targets postal voting, among other things, but its most troubling provision allows the state's Republican-controlled legislature to effectively take over the county's electoral bodies – bodies that have the power to disqualify voters and close polling stations.
Meanwhile, Republicans in Texas are pushing for laws that redistribute electoral districts in urban areas to make it harder for many voters to cast a vote and that local election officials may have to remove thousands of voters from their lists. In Arizona, Republicans have proposed a number of new hurdles that voters would have to overcome in order to cast a vote – while doing so Conducting an arbitrary "test" of the 2020 elections that appears to justify such laws.
All of this is possible because the Supreme Court has been dismantling safeguards against these types of laws over the past decade and a half. Not so long ago, these attacks on democracy would have ended up in a skeptical judiciary. Now they are likely to be confirmed.
Almost immediately after DeSantis signed Florida's new law to suppress voters, a coalition of voting organizations and voters, represented by Democratic superstar lawyer Marc Elias, filed a lawsuit against the new law. Several similar lawsuits are against Georgian law. However, these lawsuits face an uphill battle, largely due to Supreme Court rulings repealing various laws and doctrines protecting the right to vote.
Just over a decade ago, federal laws and well-established constitutional doctrines formed a robust shield against state laws designed only to restrict the right to vote. But shortly after President George W. Bush appointed Chief Justice John Roberts, a longtime crusader against strict suffrage, and Judge Samuel Alito, the Court's most trusted Republican partisan, the Supreme Court began poking holes in that shield.
And the court only got more anti-voting after President Donald Trump put three Conservative Republicans on his bench.
States like Florida and Georgia make voting difficult, in other words because they believe the courts will let them get away with it. You are likely to be right based on some crucial decisions made by Roberts Court.
Not so long ago the Supreme Court would have passed laws targeting fabricated allegations of electoral fraud
While the right to vote is the essential building block of any democracy, not all laws that make it difficult to vote are unconstitutional. As the Supreme Court in Storer v. Brown (1974) acknowledged that “if elections are to be fair and honest, and if there is to be some sort of order rather than chaos, there must be a substantive rule for elections in practice. "
States can rightly require voters to cast their ballots in a specific location, and those voters may have to do so on a specific time and date. You can impose reasonable restrictions on who can qualify as a candidate whose name appears on the ballot. And states can require voters to use a standardized ballot instead of, for example, simply writing a series of names on a blank piece of paper and dropping it off at a polling station.
While many electoral rules are permissible even if they prevent a small cohort of voters from casting a vote, it was only 13 years ago that the Supreme Court prohibited states from making laws for no other purpose than restricting the right to vote. As the Court found in Anderson v Celebrezze (1983), when federal courts are faced with a law making it difficult to vote, “the nature and extent of the alleged violation” must be against the right to vote against “the precise interests “Weighed up by the state as a justification for the burden imposed by its rule. "
Laws that only minimally encumbered the right to vote and at the same time served legitimate state interests were generally observed. But laws that weighed on the right to vote for no other real purpose would be struck down under Anderson.
Anderson is still a good law technically. However, the Supreme Court watered Anderson's 2008 balancing act in Crawford versus Marion County Election Board so much that it is unclear whether Anderson still offers meaningful protection against laws that were primarily enacted to disenfranchise voters.
Crawford was an early challenge to what was then a cutting-edge method of restricting the right to vote: strict voter identification laws. Proponents of such laws requiring voters to present photo identification before they can cast a ballot usually claim they are necessary to prevent anyone from posing as a voter in the elections. But this type of electoral fraud is so rare that it hardly exists.
A study by Loyola Law School professor Justin Levitt, who led much of the Justice Department's voting work in the Obama administration, uncovered just 35 credible allegations of personal election fraud among the 834 million ballots cast in the 2000-2014 election . A Wisconsin study found seven cases of fraud among the 3 million votes cast in the 2004 election – and none were the type that a voter ID could prevent. In 2014, Iowa Secretary of State Matt Schultz, a Republican, announced the results of a two-year investigation into electoral misconduct in his state. He found no cases of voter identity in the elections.
The primary opinion in Crawford could identify only one case of personal electoral fraud in the past 140 years.
Under Anderson's framework, the Indiana voter identification act at issue at Crawford should have been abolished. A state's power to regulate elections is at its lowest point when it targets an imaginary or practically nonexistent problem.
However, the court allowed the Indiana Electoral Card Act to go into effect at Crawford.
The Court's Conservatives agreed on this outcome, but it's worth noting that the vote in Crawford was 6-3, with the five Conservative judges split between two separate opinions. The main opinion in Crawford was drafted by Judge John Paul Stevens, a moderate representative of Gerald Ford who frequently voted with the liberal bloc of the court.
Stevens later described Crawford as "a rather unfortunate decision". And shortly after Stevens & # 39; death in 2019, electoral law scholar Rick Hasen speculated that Stevens & # 39; Crawford opinion could have been a "tactical move that saved the country from a much worse decision" – Stevens' opinion was supported by Chief Justice Roberts and Justice Anthony Kennedy, who may have supported a more radical opinion from Justice Antonin Scalia would have followed if Stevens had not voted for a conservative result.
Regardless of why the judges voted as they did in Crawford, the decision was still a disaster for the right to vote. It has been found that states can enact laws that restrict the right to vote, even when the only justification for the law is an imaginary or grossly exaggerated problem.
The Court of Justice has overturned important protections against racist electoral laws
In addition to the balancing test recognized by cases like Anderson, federal law is also designed to provide very robust protections against racial discrimination in elections.
The most effective provision of the Federal Voting Rights Act was Section 5 of the Act, which required states and local governments with a history of racist voting practices to "lock out" new voting rules – either in the Department of Justice or in a federal court in Washington, DC – before these new rules take effect could. The idea was to prevent racist electoral rules from ever having the ability to disenfranchise anyone.
Section 5 also provided very extensive protection against discrimination against racial voters in the jurisdictions in which it was applicable. Section 5 required covered states and local governments to request pre-approval for a new “Voting Qualification or Requirement for Voting, or a Standard, Practice, or Procedure Related to Voting”. And preclearance would be denied if the new electoral rule had either the "purpose" or the "effect of denying or curtailing the right to vote on the basis of race or skin color".
Before the Supreme Court in Shelby County v. Holder (2013) effectively eliminated this pre-settlement regime, nine states nationwide were subject to pre-clarification requirements. These included Arizona, Georgia, and Texas.
In other words, before Shelby County, Texas should not have passed a law that closes constituencies in mostly black and brown neighborhoods. Similarly, all of Georgia's electoral suppression law would be subject to prior investigation, as would any new measures taken under that law – such as the decision of state-level Republicans to take over local Atlanta electoral bodies or their control over local electoral administration to use to close polling stations in black communities.
Shelby County's premise was that it was unfair to seek out the particular jurisdictions that were previously subject to pre-screening because those jurisdictions were no longer "ubiquitous", "flagrant", "widespread" and "widespread" types. Discrimination That marked the Jim Crow era. As Roberts wrote for the Shelby County Court, "There is no denying that the preclearance conditions that were originally justified no longer characterize voting in the covered jurisdictions."
Maybe. But, as Justice Ruth Bader Ginsburg famously wrote deviantly, the fully functional suffrage law was one of the main reasons the suppression of Jim Crow voters subsided in the second half of the 20th century. "Throwing away preclearance when it's worked and continuing to work to stop discriminatory change," Ginsburg clapped back to Roberts, "is like throwing your umbrella away in a rainstorm because you won't get wet."
Ginsburg's warning now seems forward-looking as many of the states that were once subject to pre-screening are now battling over voter disenfranchisement laws.
It's going to get worse
Decisions like Crawford and Shelby Counties were made when the relatively moderate Conservative Judge Kennedy held the balance of power in the Supreme Court, when Judge Ginsburg was alive, and Amy Coney Barrett was an obscure law professor at Notre Dame. Now that Kennedy and Ginsburg are gone, the new majority in the court is likely to make significant new encroachments on the franchise.
For example, the Supreme Court heard a case in March that could potentially dismantle what remains of the voting rights law. While some of the judges in oral arguments were unwilling to remove all of the nation's protections against racist electoral laws in one fell swoop, this case is likely to weaken the suffrage law even further and open the door to more voter suppression laws.
Conservative judges, meanwhile, are pushing for a radical doctrine that would give state lawmakers an unprecedented new power to pass new electoral laws – even if those laws are rejected by the governor or crushed by the state courts. As Justice Neil Gorsuch described this doctrine, "The Constitution provides that state law – no federal judges, no state judges, no governors, no other state officials – has primary responsibility for setting the electoral rules."
It is unclear whether the Tribunal will implement this doctrine or how far it will go. Of the six Conservative judges, only four currently support Gorsuch's approach. Roberts has supported it in the past, but stepped back from that view in a statement last October. This means the decision is likely due to recently confirmed Judge Barrett, who didn't stand in court long enough to reveal whether she agrees with Gorsuch.
If Gorsuch's proposed rule were taken to the logical extreme, the elections could be postponed even further in the direction of the Republican Party. It could potentially allow legislatures in states like Wisconsin, Michigan, and Pennsylvania to draw congressional cards that put Democrats out of power – and then put those cards into law even if the state's Democratic governors attempt to veto the cards . Gorsuch's approach could also prohibit the state supreme courts from enforcing state constitutional provisions that protect voting rights or prohibit gerrymandering.
In other words, the Supreme Court is signaling that it does not tend to protect voting rights – and that it may even tend to further dismantle existing rules that protect our democracy. Republican lawmakers are able to read these signals just like anyone else. And so it should come as no surprise that we are seeing the types of voter suppression bills we see now in places like Georgia, Florida, Texas, and Arizona.