The Supreme Court Created This Voting Rights Crisis
Justice Ginsburg's dissent in Shelby County v. Holder warned of this exact situation.
On Thursday, Georgia’s Republican-controlled state government—still seething from President Biden’s victory in the state in the 2020 election—enacted a voting bill that is straight out of the Jim Crow playbook. Among many other appalling provisions, the new law expands the G.O.P legislature’s control over voting, strips the Secretary of State of some of his authority, imposes stricter voter ID requirements and makes it a crime to hand out food or water to voters waiting in line to cast a ballot. The measure was signed into law by Governor Brian Kemp in front of a painting of a notorious slave plantation.
According to the Brennan Center for Justice, Georgia’s law is one of over 250 similar measures being pushed by Republicans all across the country. This, of course, is no surprise. It is a baseline view of the Republican Party that certain people—mainly non-white voters—should not be permitted to participate in the democratic process. After months of watching Republicans fuel conspiracy theories about voter fraud and absolve Trump of any responsibility for trying to violently overturn the results of a presidential election, it is by no means surprising that paring back voting rights is a top priority for the right.
But to place the blame solely at the feet of Republican legislators misses a crucial part of the story. There is another institution in this country that is largely to blame for this scourge of attacks on voting rights: the Supreme Court.
In 2013, the Supreme Court’s far-right majority eviscerated the Voting Rights Act in the landmark case Shelby County v. Holder. The key to the decision were the portions the Act which created a formula for identifying certain states and municipalities with a history of discrimination. Under the Act, the covered jurisdictions could not change their voting laws without getting preclearance from the U.S. Department of Justice, which is controlled by the president.
Before the Supreme Court’s decision, nine states were fully covered by the preclearance formula. One of them was Georgia.
In other words, had the Supreme Court kept the Voting Rights Act in place, President Biden’s Department of Justice, run by Attorney General Merrick Garland, could block Georgia’s new law in its entirety. Instead, the federal government is virtually powerless to stop this plain assault on the rights of Americans to vote.
What’s most outrageous about this is that it was entirely foreseeable. Justice Roberts’s opinion in Shelby County was based on the premise that the Voting Rights Act’s formula was unfair to states with a history of discrimination because, well, that was a long time ago and things have changed. Here’s what Roberts wrote:
Nearly 50 years later, things have changed dramatically. Shelby County contends that the preclearance requirement, even without regard to its disparate coverage, is now unconstitutional. Its arguments have a good deal of force. In the covered jurisdictions, “[v]oter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” The tests and devices that blocked access to the ballot have been forbidden nationwide for over 40 years.
In response, Justice Ginsburg noted the obvious: voting rights in this country have improved because of the protections afforded by the Voting Rights Act. By removing those protections, you are inviting a return to the past.
[The preclearance requirements serves as] a remedy Congress designed both to catch discrimination before it causes harm, and to guard against return to old ways. Volumes of evidence supported Congress’ determination that the prospect of retrogression was real. 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.
Now, with Georgia implementing a law that in many ways explicitly targets Black voters, Justice Ginsburg’s prediction, unsurprisingly, came to fruition. When Justice Roberts and the far-right majority of the Supreme Court voted to destroy the core provisions of the Voting Rights Act, they knew full well that, without such protections, voting discrimination would return in full force. It didn’t stop them.
In order to combat the right’s ongoing battle to curtail voting rights, progressives need to see this for what it is: not just a few Trumpian bad actors passing outrageous laws, but a decades-long, concerted effort by the right to install white minority rule. In many ways, the conservative project stems from this goal—from voting rights, to the filibuster, to court packing, to policies that entrench economic inequality. It all functions to strip progressives of their power and entrench minority rule.
As moderate Democrats in Congress insist on bipartisan support for a new voting rights bill, they ought to keep this in mind. It is impossible to craft legitimate voting rights protections with input from a group of people who feed an engine determined to do the opposite. If you need proof, just look to John Roberts: the supposed even-handed judge who paved the way for this crisis. And he knew it.