America is seen as a beacon of democracy around the world and the right to vote is one of the key principles of democracy. Having free and fair elections is one of the most important pillars of democracy, yet in this area, America is backsliding. In 2021 from January 1st to December 7th, 19 states passed 34 laws that restricted access to voting according to the Brennan Center for Justice. The arguments for restricting the right to vote are not new, anti-illegal immigrant voting arguments are returning just as they were used in the 90s. Most of the time, it is safe to assume that they are only made to galvanize the proposer’s political base because the laws on the books already prevent non-citizens from voting. Georgia Senate Pro Tempore Butch Miller had proposed an amendment to the State’s Constitution to prohibit non-citizens from voting. Yet, Georgia already ensures that non-citizens cannot vote due to state law and the current Constitution.
This is similar to the floor debate in the House during the consideration of the National Voter Registration Act (NVRA) of 1993. Congressional Republicans were insistent that the bill be amended to say non-citizens were prohibited from voting. The structured rule of debate did allow an amendment to be proposed by Rep. Robert Michel (R-IL) one of which was to add language to the bill that says non-citizens cannot vote, which was already in the bill. Similar to how Miller’s constitutional amendment was attempting to add language that is redundant to both state law and the Georgia Constitution. If some of these arguments and rhetoric have been argued before, why is this happening now? There are many reasons from polarization to a major party that does not have support from the majority of voters wanting to maintain power. Yet a main difference is since the civil rights era of the 1960s, America’s judicial system has changed course and is no longer a defender of the right to vote. The arguments for restricting the right to vote are not new, simply political actors have been emboldened by the Court and can now act.
In Shelby County v. Holder the Supreme Court ruled that the preclearance formula from Section 4 of the Voting Rights Act (VRA) was unconstitutional. This preclearance formula was used by Section 5 to prohibit districts from changing their election laws without gaining authorization from the Department of Justice. The goal of which was to prevent historically repeat offenders of voting rights from continuing to discriminate. The Court ruled that because it did not uniformly apply to all districts and states, it was unconstitutional. Chief Justice John Roberts acknowledged how the Court had previously upheld Section 4 of the VRA because Congress was reacting to a serious problem. Yet, he argued that since the passage of the VRA these repeat offenders had not passed any unconstitutional changes and therefore the need for Section 4 was no longer great enough to “discriminate” against those who the formula covered. A simple rebuttal to his point: Yes, they were unable to pass anything because the Justice Department prevented them from doing so. Now they are back to their old ways.
One need not look further to how these states have regressed since the repeal of Section 4 than to the Court’s opinion in Merrill v. Milligan, which was released on 2/7/2022. The Court blocked a Congressional map that would have created two majority black districts and backed a map proposed by Alabama that would place both Birmingham and Montgomery in a single district. The Court overturned a decision by a three judge federal court panel that included two Trump appointees which ruled that Alabama as a state with a population that is more than 25% black can, and must, create two majority black districts out of their seven total. This is an extreme blow to Section 2 of the VRA which says that no voting practices or procedures can discriminate on the basis of race and has been seen as an indicator that the Court may soon rule the section unconstitutional.
Section 2 also took another recent blow: a Federal Judge from Arkansas ruled in Arkansas State Conference NAACP v. Arkansas Board of Apportionment, days after the Supreme Court’s ruling in Merrill v. Milligan, that only the Attorney General of the United States can bring lawsuits under Section 2. Section 2 is the last enforcement tool from the voting rights act that litigators from NGOs, such as the ACLU, can use to protect the right to vote and defend against discriminatory voting laws. If the precedent holds the VRA will simply be a suggestion.
Another area where the Supreme Court has weakened protections of the right to vote is in election administration. In Husted v. Philip A Randolph Institute, the Court ruled that Ohio’s voter roll maintenance practices were constitutional under the NVRA. This precedent has led to further practices of voter purges across the nation for simply not using the right to vote.
In Georgia, voter roll maintenance was called into question under former and current Secretaries of State, Brian Kemp and Brad Raffensperger. As Secretary of State, Brian Kemp’s practices of voter roll maintenance came into question while he was campaigning for the Governor’s election in 2018. The Husted precedent was used to settle in Common Cause v. Brian Kemp. These practices are being maintained by the current Secretary of State Brad Raffensperger. In June 2021, Raffensperger’s office released a list of over 100,000 voters who were at risk of having their registration canceled.
The Supreme Court of the United States has allowed for Constitutional Retrogression. The decisions that the Court has made has significantly weakened and soon might eliminate the VRA, the most important tool litigators from within and outside the government to fight against discriminatory election practices. If citizens are facing discrimination when trying to reach the ballot box, because legislators want to eliminate their political competition and save their own jobs, our democracy is being eroded.
I found your blog very thought provoking. While it may not be the reason we are rehashing racist tropes in our politics, the Judiciary’s actions (or lack thereof) when it comes to voting rights is certainly contributing to our current democratic backsliding. The gutting of the voting rights act was a major moment of democratic backsliding and a major mistake. The rationale was bogus and the ramifications are becoming dangerously evident. The Merrill v Milligan case is a prime example of damage to the democracy their decision had. The new maps that the courts will allow will ensure systemic discrimination on the basis of race for at least the next decade. I find it ironic that the judicial branch is, arguably, simultaneously the most crucial branch and the weakest branch of our government. It is weakest because it has no enforcement mechanism and its only ability is its credibility and belief in the institution. It is the most crucial because its presence ensures the stability of the nation and the backbone of a fair society. When it is corrupted or discredited, it can crumble the faith in the democracy and lead to the fall of a nation. As you outline quite well, the supreme court has been contributing to the democratic backsliding that we have seen in recent years by neglecting to protect the democracy. It can be frustrating to see blatant attacks against our democracy be welcomed like a Trojan horse. If our democracy is to remain strong, we need to defend our democratic institutions from authoritarian ideologies and partisan agendas.