Republican-controlled state legislatures, furthering Trump’s big lie, have responded with a deluge of voter suppression measures, as well as legislation enabling lawmakers to sideline election officials, interfere as votes are counted, and mess with how winners are certified.
As David Savage explains, in a deft analysis ("How the Supreme Court has tilted election law to favor the Republican Party") with pungently clarifying observations (several of which appear below) from a number of legal scholars, conservative majorities of the United States Supreme Court paved the way for this zealotry and turmoil in red and purple states.
The Supreme Court with conservatives ascendant has hardly confined itself to calling “balls and strikes,” in John Roberts' quaintly expressed pledge at his confirmation hearing. As conservative ideologues have secured tighter control of the high court, the majority has increasingly been willing – as the Los Angeles Times’ headline suggests – to tilt the playing field to benefit the Republican Party. Umpires don't change the rules of the game, as the Roberts' Court has done. With the three Trump-appointed justices, we have begun to see this pattern become even more aggressive.
The cascade of rulings that have fundamentally reshaped the political and electoral environment in the country is familiar to court watchers:
Voting Rights
In Shelby County v. Holder (2013), the Chief Justice advanced a cause he had taken up decades earlier in the Reagan White House: undermining the Voting Rights Act of 1965 (arguably "the single most effective piece of civil rights legislation ever passed by Congress"). The Act required jurisdictions with a history of discrimination to clear changes in voting rules with the Justice Department. Justice Roberts, writing for the 5-4 conservative majority, struck down that provision, rendering enforcement of the law far more difficult. His opinion insisted that "pre-clearance" was outmoded since Black registration had increased substantially since 1965: “Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. There is no longer such a disparity.”
Ruth Bader Ginsberg 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.” Her judgment proved to be correct. ("The effects were immediate. Within 24 hours of the ruling, Texas announced that it would implement a strict photo ID law."). The shameful stampede to restrict voting across the country in 2020 is a result of the Republican majority's decision.
In 2020, the court sided (5-4) with the Republican-controlled Wisconsin legislature and the Republican-controlled state supreme court, and against voters during the 2020 pandemic in a pair of cases, which illustrate the position staked out by SCOTUS's majority (in a series of state voting controversies). In Republican National Committee v. Democratic National Committee the Court granted (on April 6, 2020) the RNC and Wisconsin Republican Party's request to block a lower-court ruling that extended the deadline for accepting absentee ballots by six days. Mostly Democratic voters had not received their ballots soon enough to vote by mail because of a huge backlog of requests during the pandemic. This left voters a choice: lose the right to cast a ballot or, against medical guidance to stay home and avoid crowds, venture out to the polls on election day. The court's five Republicans ruled that the right to vote while protecting ones health was less compelling than a “narrow, technical question” of the law. Justice Ginsburg's dissent took issue with that:
The majority of this Court declares that this case presents a “narrow, technical question.” Ante, at 1. That is wrong. The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic. Under the District Court’s order, they would be able to do so. Even if they receive their absentee ballot in the days immediately following election day, they could return it. With the majority’s stay in place, that will not be possible. Either they will have to brave the polls, endangering their own and others’ safety. Or they will lose their right to vote, through no fault of their own. That is a matter of utmost importance—to the constitutional rights of Wisconsin’s citizens, the integrity of the State’s election process, and in this most extraordinary time, the health of the Nation.
The court's five conservatives reprised this ruling (on October 26, the same day the Senate confirmed Amy Coney Barrett to replace the late Ruth Bader Ginsburg) in a 5-3 decision, with three liberal justices dissenting in Democratic National Committee v. Wisconsin State Legislature. With these cases, among others, the Republican justices have made clear they don't regard the right to vote as compelling. Far from it:
“The Supreme Court has not sent a signal they will protect the right to vote."
Nathanial Persily, Stanford Law (as quoted by Savage)
Gerrymandering
Gerrymandering, the practice of drawing legislative districts (whether federal or state) to advantage one party, while disadvantaging the other, has been employed -- successfully -- going back at least two centuries. As Republican strategist and mapmaker Thomas Hofeller gleefully put it: "Usually the voters get to pick the politicians. In redistricting, the politicians get to pick the voters!" The advent of computers, moreover, has introduced extreme gerrymandering. Voters from the disfavored party can be denied representation commensurate with their numbers -- virtually guaranteeing continuing dominance by the party in charge, regardless of the outcome of future elections --as district lines are drawn with a savage precision unknown in the past.
In 2017 Michael Li, at the Brennan Center for Justice, estimated the effect of gerrymandering at the Congressional level:
This decade’s congressional maps are consistently biased in favor of Republicans.
-
- In the 26 states that account for 85 percent of congressional districts, Republicans derive a net benefit of at least 16-17 congressional seats in the current Congress from partisan bias. This advantage represents a significant portion of the 24 seats Democrats would need to pick up to regain control of the U.S. House of Representatives in 2018.
In numerous states, gerrymandering of state legislative districts is equally pernicious. For instance, to look again at Wisconsin, a state closely divided between Democrats and Republicans, but where Republican capture of the legislature and the state supreme court has ensured control of the redistricting process. Since reapportionment following the 2010 census, Democrats have been consistently disadvantaged relative to their vote totals. In a balanced analysis in February 2021 (which also explains the techniques of "packing" and "cracking"), John Johnson at Marquette University Law School observes: "There is no serious question that the State Assembly districts drawn in 2011 are an extreme Republican gerrymander." In a robust handful of other states, Republican (mostly, though sometimes Democratic) legislators have been equally successful in severely diminishing the representation of their partisan opponents.
Gerrymandered state and federal legislative districts, I anticipate, are likely to have a greater effect on the November 2022 election results than the wave of voter suppression laws we're seeing in 2021. With the Supreme Court's Rucho v. Common Cause decision delivered on June 27, 2019, the Roberts' Court not only refused to uphold lower court rulings striking down gerrymandered redistricting schemes, it forbade federal courts from consideration of constitutional violations resulting from partisan redistricting, precluding imposition of any possible remedies.
John Roberts, writing for the Republican majority, did a bit of handwringing about the unfairness of the process and dithering about why it was simply impossible for the federal courts to adjudicate notions of fairness, before concluding with a definitive judgment that the federal courts must just step aside and let things be. Justice Kagen, in dissent, was hardly impressed by this reasoning:
For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.
And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people. These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences. They promoted partisanship above respect for the popular will. They encouraged a politics of polarization and dysfunction. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government.
. . .
Maybe the majority errs in these cases because it pays so little attention to the constitutional harms at their core. After dutifully reciting each case’s facts, the majority leaves them forever behind, instead immersing itself in everything that could conceivably go amiss if courts became involved.
The court's Republican majority has not wrung its hands with how, oh, how to adjudicate justice or fairness in areas where it has been committed to creating new law: whether expanding gun rights beyond reason, or inventing notions of religious liberty, or (with dreams of a revived Lochner Era) crippling the legislative state. The frenzy of gerrymandering we are almost certain to see next year will come with the blessing of SCOTUS's Republican majority.
“The Supreme Court has given a green light to aggressive partisan gerrymandering. It is almost certainly enough seats in those states alone for Republicans to win back the House.”
Michael Li, Brennan Center (from Savage)
Campaign Finance
In no area has the court's Republican majority changed the playing field so fundamentally as in how campaigns are financed. Citizens United v. FEC (2010), McCutcheon v. FEC (2014), and other decisions have sabotaged campaign finance law, virtually shredding spending limits. Under the guise of protecting "political speech," Citizens United prohibited limiting big money contributions to independent campaigns and McCutcheon barred limits on how much money any individual could give to campaigns.
In Citizens United, Justice Anthony Kennedy's opinion insists, "independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption". In McCutcheon, Justice Roberts' decision begins with these words,
There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options.
which he follows up with a dismissal of any appearance of corruption by big money contributions.
What stands out in recent years is that the Republican majority will ensure that wealthy individuals and corporations are free to pour huge sums of money into politics, but the right of individual Americans to cast ballots is of no more than secondary importance.
A law professor (cited by Savage) refrains from speculating about the Republican justices' intent:
“But across the right to vote, redistricting, the Voting Rights Act and campaign finance, the court’s decisions have benefited Republicans. And partisan advantage explains these decisions better than rival hypotheses like originalism, precedent, or judicial nonintervention.”
Nicholas Stephanopoulos, Harvard Law
One Person, One Vote: A Contrast
In 1964, Chief Justice Earl Warren's one person, one vote decision in Reynolds v. Sims struck like a bolt from a thundercloud. It followed Justice Hugo Black's decision in Wesberry v. Sanders, earlier in the year. State legislative districts and Congressional districts (within a state), respectively, must represent proportional populations. As Warren wrote:
Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system.
The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.
And:
The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. And the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise.
This upended a commonplace political practice: states had to go back to the drawing board in creating legislative districts, both state and federal. The country's political landscape looked much different afterwards.
The Warren Court's passionate and expansive commitment to the right to vote is hardly shared by the Roberts' Court or by any of the justices who most often join the Republican majority in close cases. To cite a final legal scholar (Franita Tolson of the University of Southern California Law School) quoted by David Savage, there is a reason for the preoccupations of today's court: “they are privileging the status quo of 1787 when the electorate was mostly white men and ignoring the more egalitarian Reconstruction Amendments.”
Of course. The Republican majority in Bush v. Gore appealed (as a one-off) to the Equal Protection Clause of the Fourteenth Amendment to stop the counting of votes in Florida and deliver the 2000 election to George W. Bush. But to look to a Reconstruction Amendment to protect voting rights, especially when it is minority voters and other Democratic constituencies whose votes are threatened? That's not part of the game plan for this determined majority.
The rush of voter suppression legislation we're witnessing today and the imposition of gerrymandered redistricting maps we'll witness next year, both in service to a political calculation by the Republican Party (to play along with the deceit that Joe Biden's election and votes cast by Democratic constituencies are illegitimate), were made possible by the Republican Party's capture of the United States Supreme Court.