Conservatives Are Winning The Supreme Court’s Most Important Fight: Suppressing The Vote

This commentary is part of Disappearing Democracy, a series analyzing voting rights and voter suppression in America.

As the Supreme Court’s term came to a close earlier this month, many commentators rolled out retrospectives praising the Court for what they cast as the justices’ displays of principled nonpartisanship. “Much of American government and politics is dysfunctional,” wrote Yale Law School professor Akhil Reed Amar in a New York Times op-ed. “The contrast between the Roberts court and the country could hardly be starker.”

Pointing to Chief Justice John Roberts’s much-ballyhooed votes to extend civil rights protections to LGBTQ workers and preserve abortion rights in Louisiana, The Atlantic’s Jeffrey Rosen congratulated the Court for resisting the “personalization of judicial politics” at such a polarized moment. Roberts, Rosen wrote, “worked to ensure that the Supreme Court can be embraced by citizens of different perspectives as a neutral arbiter, guided by law rather than politics.”

Three days later, the Court declined to interfere with the Florida legislature’s efforts to gut Amendment 4, a 2018 constitutional amendment intended to restore the voting rights of 1.4 million people previously convicted of felonies in a state where the criminal legal system had disenfranchised about one in five Black residents. 

Voters had overwhelmingly supported the measure when they passed it two years ago. Republicans in Tallahassee, however, responded with a law requiring affected people to pay off associated financial obligations like fines, court fees, and restitution—which can run hundreds or even thousands of dollars—before their rights are actually restored. Because of the justices’ unwillingness to protect citizens from their representatives’ strategic electorate-thinning efforts, many people with felony convictions will remain stuck on the political sidelines in 2020 after all. 

The Court’s refusal to intervene, Justice Sonia Sotomayor wrote in dissent, “prevents thousands of otherwise eligible voters from participating in Florida’s primary election simply because they are poor,” and “continues a trend of condoning disfranchisement.”

Even in the midst of a deadly pandemic, the Roberts Court remains as committed as ever to the conservative legal establishment’s most important project: systematically destroying voting rights. Over the term’s final few months, the conservatives continued to rubber-stamp the GOP’s voter suppression crusade, refusing to allow a public health emergency to alter their dogmatic belief that it should be more difficult for people—especially nonwhite and lower-income people—to participate in free and fair elections. This mission is what fuels the Republican Party’s success, and as long as Roberts and company hold the line, political and legal victories for progressives will be occasional, unexpected, and limited in their impact.

Roberts’s antipathy toward voting rights long predates his tenure on the Court. As detailed by author Ari Berman, Roberts drafted dozens of memos and op-eds arguing for limitations on the Voting Rights Act while working as a lawyer in the Reagan Department of Justice. A former colleague told Berman that Roberts “seemed like he always had it in” for the act, and described him as a “zealot” who harbored “fundamental suspicions” about its purpose. During a debate over reauthorization in the early 1980s, Roberts opined that Congress should not make violations “too easy” to prove in court.

Roberts became chief justice in 2005 over the objections of, among others, the late U.S.  representative and civil rights movement hero John Lewis of Georgia. Testifying at Roberts’s Senate confirmation hearings, Lewis warned that the country could not afford to hand a lifetime appointment to a man with “such a strong desire to reverse the hard-won civil rights gains that so many sacrificed so much to achieve.” 

On the bench, Roberts wasted little time hacking away at voting rights. In 2008, he voted to uphold a draconian voter ID law in Indiana that threatened to disenfranchise tens of thousands of people, a disproportionate number of whom were likely to be members of marginalized communities who tend to support Democrats. Proponents had cited a supposed desire to combat in-person “voter fraud” as the impetus for passing the law. In Crawford v. Marion County Election Board, the Court somehow accepted this explanation as legitimate despite the fact that, as two dissenters protested and even the controlling opinion acknowledged, the state couldn’t point to an actual case of this sort of voter fraud taking place at any point in its history.

Lewis’s fears proved prescient: In 2013, Roberts finally got to carry out what had clearly been a long-held wish, striking a devastating blow to the Voting Rights Act itself. Writing for the conservative majority in Shelby County v. Holder, Roberts held that one of the act’s key provisions was unconstitutional: the formula for determining which places with especially pernicious histories of voter suppression must seek federal approval before altering their election laws. Since the act’s enactment, the government had used this “preclearance” system to block thousands of changes from taking effect. The Court’s ruling left the bulk of the act in place, while hollowing out perhaps the most valuable mechanism for enforcing it.

Roberts argued that these protections were no longer necessary since, in the 50 years since the act’s passage, overt racism had abated to an extent that he apparently deemed satisfactory. “Things have changed dramatically,” he wrote; turnout and registration rates between white and Black voters “approach parity,” and “blatantly discriminatory evasions of federal decrees are rare.”

Setting aside this construction’s implication of the existence of some constitutionally acceptable level of “blatantly discriminatory” state action, Roberts’s logic mistook evidence of a solution’s efficacy for proof that a problem no longer exists. As Justice Ruth Bader Ginsburg wrote in dissent, concluding that the act had outlived its usefulness was “like throwing away your umbrella in a rainstorm because you are not getting wet.”

The Court’s anti-democratic streak has not abated since. In 2018’s Husted v. A. Philip Randolph Institute, Roberts signed off on a procedure that enabled Ohio’s Republican secretary of state to purge the rolls of up to 1.2 million inactive voters between 2011 and 2016. As historian Carol Anderson writes in her book “One Person, No Vote: How Voter Suppression Is Destroying Our Democracy,” this seemingly neutral process was more likely to disenfranchise Black, Latinx, and younger voters, and effectively punished their failure to exercise a fundamental right by taking it away. 

The result in Husted, Sotomayor wrote in dissent, “entirely ignores the history of voter suppression” that the federal law at issue sought to address, and “upholds a program that appears to further the very disenfranchisement of minority and low-income voters that Congress set out to eradicate.”

As recently as 2019, Roberts and the other conservatives slammed the door on legal challenges to gerrymandering based on partisan affiliation, declaring the Court powerless to second-guess lawmakers’ efforts to entrench themselves in office. The task of line-drawing, Roberts more or less concluded, is far too messy to merit judicial involvement in “one of the most intensely partisan aspects of American political life.” Legislatures are free to impose higher fairness standards if they so choose, he noted, but federal judges cannot do the work for them.

In a vacuum, this rule applies to both parties. But in a country where Republicans control 29 state legislatures and also hold the governorship in 21 of them, it is a craven abdication of the Court’s obligation to protect individual voting rights, and serves to tighten the GOP’s vise grip on state power. Roberts’s proffered solution to the problem this decision creates—that voters dissatisfied with corruption in the political process should seek redress through the political process—ignores the reality that the beneficiaries of that corruption, absent oversight from another branch of government, have precious little incentive to address it. 

Partisan gerrymanders have “debased and dishonored our democracy,” Justice Elena Kagan wrote in dissent. “If left unchecked, gerrymanders like the ones here may irreparably damage our system of government.” She is right; in many places, she is also too late.

Despite Roberts’s bold assurances that legal safeguards against race discrimination were no longer necessary, the Court’s rulings have led to exactly the kind of all-out war on voting rights that his critics predicted they would. Many of the Republican Party’s most infamous voter suppression tools owe their modern prevalence to the Supreme Court’s blessing.

In the wake of the Shelby County decision, Republicans wasted little time unleashing a torrent of voter suppression tactics. Texas said it would begin enforcing a voter ID law within hours of the decision’s release. Alabama did the same, and later took the additional step of closing 31 driver licensing offices, many in mostly rural and nonwhite communities—a move the state had to walk back in 2016 after federal officials determined that it disproportionately affected Black voters.

North Carolina Republicans waited a little longer to act, but they made it count. After analyzing data about voting patterns of the state’s Black residents, they crafted a sweeping bill that implemented onerous voter ID requirements, ended voter registration drives and same-day registration, and rolled back early voting—all tactics carefully, and blatantly, tailored to suppress Black turnout. A federal appeals court struck down most of the law in 2016, blasting the state for targeting Black voters with “almost surgical precision.” 

Copycat voter ID laws similarly spiked after the Court’s decision in Crawford. In 2012, a prominent Pennsylvania Republican went so far as to proclaim that a voter ID law would “allow” a GOP presidential nominee—Mitt Romney that year—to win Pennsylvania for the first time since 1988. We’ll never know if he was right; a legal challenge prevented the law from taking effect, and a state court struck it down altogether in 2014. But today, nearly three-quarters of states request or require ID at the polls, with some of the strictest regimes in force in the battlegrounds of Wisconsin, Virginia, and Georgia. It bears repeating that the purported justification for these laws is that they protect against a danger that simply does not exist.

Calculating the effects of these measures is an imprecise task, but the results aren’t encouraging for those who think democracy is best served when more people vote. A pair of studies suggested that in a tight Texas congressional race, confusion over voter ID depressed turnout among Democratic-leaning residents in 2014 and 2016; both times, the Republican candidate won by a few thousand votes. Between people who couldn’t cast a ballot and those too discouraged to try, a University of Wisconsin study estimates that the state’s byzantine voter ID law prevented or discouraged about 17,000 people in Milwaukee and Dane counties from voting in 2016. A disproportionate number of them were lower-income or Black. Donald Trump won the state by 22,748 votes.

Voter roll purges, meanwhile, have become something of a sport in Republican-controlled states, which almost seem to be competing to see who can disenfranchise more people fastest. States purged 4 million more voters between 2014 and 2016—the period immediately after the Shelby County ruling went into effect—than they did between 2006 and 2008, according to a report from the Brennan Center for Justice. Overall, the report found that “jurisdictions no longer subject to federal preclearance had purge rates significantly higher than jurisdictions that did not have it in 2013.” Texas, no longer constrained by preclearance requirements, purged around 360,000 more voters in the first election cycle that followed the Shelby County ruling.

In total, the Brennan Center report estimated that 2 million fewer voters would have been purged from the rolls between 2012 and 2016 if “jurisdictions previously subject to federal preclearance had purged at the same rate as those jurisdictions not subject to that provision in 2013.” Shelby County, the authors concluded, has had a “profound and negative impact.”

Perhaps the nation’s best-known vote suppressor, Georgia Governor Brian Kemp, has proved especially adept at trimming voter rolls. As secretary of state, Kemp oversaw the cancellation of over 1.4 million registrations between 2012 and 2018, including 670,000 in 2017, according to the Associated Press. The following year, he won the state’s hotly contested governor’s race, denying Democrat Stacey Abrams’s bid to become the nation’s first Black female governor by less than two percentage points.

Successful Republican gerrymandering has helped preserve the party’s power in areas where more equitably apportioned maps might have doomed it. As journalist Ian Millhiser details in his book “Injustices,” in 2012—the first election held after a Republican-controlled redistricting process—Republicans won a 33-seat majority in Congress, even though voters cast over a million more votes for Democrats. In Ohio, Republican House candidates captured 52 percent of the vote, but 12 of 16 seats; in Pennsylvania, voters re-elected a Democratic president, a Democratic senator, and a House delegation of 13 Republicans and five Democrats. 

After the 2010 census, Republicans in Wisconsin vowed to divide the state in a way that would preserve their majority for the foreseeable future. In “One Person, No Vote,” Anderson recounts how lawmakers spent months refining the map, using sophisticated statistical analyses to draw lines that would make anything other than token Democratic representation virtually impossible. This effort was remarkably successful: In 2018, Democratic candidates for state assembly received some 200,000 more votes than Republicans and came away with 27 fewer seats. Last year, a week after the Supreme Court passed on addressing partisan gerrymandering, a federal lawsuit challenging the map’s constitutionality was dismissed.

The COVID-19 era has not deterred conservative judges’ enthusiasm for promoting their agendas; as I wrote earlier this year, in some cases, they seem to be emboldened by the opportunity. During this past term, the Court’s “shadow docket”—matters resolved without oral argument—was peppered with both endorsements of mid-pandemic efforts to limit voting rights and repudiations of efforts to expand them.

In April, the five conservatives blocked a lower federal court order extending the deadline for returning absentee ballots in that month’s primary election in Wisconsin. The opinion cited a principle that lower courts “should ordinarily not alter the election rules on the eve of an election,” as if a pandemic that had largely ground life to a halt merited no deviations from business as usual. Bafflingly, they went on to characterize the idea of giving voters extra time to get to a mailbox—during a statewide stay-at-home order, no less—as “extraordinary relief” that would “fundamentally alter” the contest’s nature. In effect, the justices forced people who hadn’t received an absentee ballot to choose between risking their health to vote in person or skipping the election altogether. 

This “sloppy” and “cavalier” decision, wrote election law expert Rick Hasen, sent troubling signals about the Roberts Court’s ability to flexibly navigate the pandemic-induced uncertainty that lies ahead. “It failed to even mention the voting rights that the plaintiffs were seeking to vindicate,” he wrote, and “sent a message that the Court cares little about the voting rights of people in the state, especially African-American voters in Milwaukee who had been facing great risk related to the virus.” 

This trend continued in Texas, where the justices declined to give effect to a lower court’s order allowing all voters to cast ballots by mail, and in Alabama, where they blocked a district court’s order that relaxed the obligations of medically vulnerable people to include copies of their ID and witness signatures when voting absentee. (All four liberals signaled that they would have stepped in the Alabama matter; only Sotomayor expressed written concerns, while agreeing with the result, in Texas.) The point of these accommodations, of course, is to allow people isolating in their homes to participate in democracy. By limiting eligibility and requiring would-be voters to track down witnesses and a copy machine, the Court rendered them useless. 

Finally, on July 16—four days before Florida’s primary voter registration deadline—the Court issued its decision in Raysor v. DeSantis, most likely enabling the legislature’s evasion of Amendment 4 to keep many people with felony convictions from the polls this fall. In a particularly grotesque wrinkle, Republicans passed the fines and fees requirement despite the widespread unavailability of records about how much any person owes, at once imposing an latter-day poll tax and making it impossible for people to know for sure if they’ve paid it. In May, a lower federal court declared most of this “pay-to-vote system” unconstitutional; reviewing the decision, Slate’s Mark Joseph Stern wrote that it would be “impossible for any judge to overturn … without carrying water for the GOP.” By stopping the ruling from taking effect, both the appeals court and the Supreme Court basically obliged.

At least one of the Court’s recent COVID-19 decisions didn’t have the immediately disastrous effect many observers feared: In the Wisconsin election, turnout was strong overall, and state Supreme Court candidate Jill Karofsky, a liberal, triumphed over an incumbent conservative justice. But deep-blue Milwaukee County, where just five of the usual 180 polling places were open, lagged notably behind the rest of the state—an ominous sign for Democrats counting on high turnout to help boot President Trump from office in November.

Besides, far more concerning than the results of a single primary election is the rigidity of the Roberts Court’s approach: Hostility toward voting rights is so deeply embedded in the conservative majority’s worldview that even under circumstances unlike those of any election in recent memory, they refuse to do anything differently. Given this reality, the prospect of this Court acting as the ultimate arbiter of what is certain to be a bonfire of attempted voter suppression in this fall’s election is chilling beyond belief. 

Especially when the Court is so firmly under GOP control, several of its recent high-profile decisions came as pleasant surprises to many. It is unequivocally good that LGBTQ Americans now enjoy federal protections from discrimination in the workplace, and that DACA’s survival—for now—prevents hundreds of thousands of young Latinx people from facing imminent deportation, and that women in Louisiana still have access to abortion care.  

The Roberts Court’s steadfast commitment to voter suppression, though, is shaping up to be its most consequential accomplishment, because every other aspect of the conservative agenda depends on its success. Carving out Republican-friendly districts leads to the election of more Republican lawmakers to pass more extremist laws, and more Republican chief executives to enforce those laws, and more Republican judges to uphold them. Conservatives won’t win every single legal or political fight, but when voter suppression is working to steadily push the entire legal and political infrastructure to the right, their odds are always improving.

Over the last few decades, public enthusiasm has waned for many of the traditional planks of the Republican platform. Most people support preserving women’s reproductive rights, want more robust gun safety laws, and would like to see the government impose higher taxes on the rich. But voter suppression allows the GOP to evade this burgeoning existential crisis: Instead of making hard choices and crafting positions that might attract broader support, the party can make its pitch to handpicked electorates who are more inclined to back the agenda already in place. By cloaking conservatives’ preferred policies with the trappings of a fair process, this layers a veneer of legitimacy over real-world outcomes that do not deserve it.

The result is the America before you today: a funhouse-mirror vision of democracy that reflects the preferences not of all the people, but of the particular people whose participation Republicans have deemed useful. As long as the Roberts Court remains in power, those who have already been marginalized by its decisions can do little about it.

Jay Willis is a senior contributor at The Appeal.

CORRECTION: This commentary originally included a misspelling of Ian Millhiser’s name.