The Democrats Are Bungling Voting Rights—but Not in the Way You Think
The John Lewis Voting Rights Act—still languishing in Congress a year after its name was changed to reflect the passing of the legendary civil rights activist, Representative John Lewis—is a solution to a problem wholly invented by the Supreme Court. In 2013, Chief Justice John Roberts wrote the majority opinion in a case called Shelby County v. Holder, and in it he stripped away a key protection provided by the Voting Rights Act of 1965. Republican-controlled states used the opportunity Roberts gave them to further suppress the Black vote, and his decision is a far bigger reason Donald Trump was able to run an openly white supremacist campaign and win the presidency in 2016 than any tales of economically aggrieved white people in Ohio that you may have heard about.
The John Lewis VRA is a good and sorely needed piece of legislation, as is HR 1, or the “For the People Act,” which addresses some of the voter suppression tactics employed by Republican states in the wake of Trump’s defeat. But while the Democratic majority lacks the strength to pass this bill, Senator Joe Manchin, the apparent leader of the Vichy Democrats, believes that the Lewis VRA is the best way to address the Jim Crow–style voting restrictions now favored by the Republican Party. He’s even got one Republican, Lisa Murkowski, to go along with him. No word on the other nine it would take to pass the bill while still upholding the antidemocratic filibuster that Manchin claims is integral to “democracy.”
Unfortunately, at this point, even if Congress somehow passes the Lewis Voting Rights Act, it will not be enough to stop Republicans intent on suppressing the vote. Manchin, President Joe Biden, and congressional Democrats have somehow convinced themselves that the Lewis VRA will succeed where the original Voting Rights Act failed and be upheld by the current, conservative-controlled Supreme Court. They think it will be able to withstand the court’s skepticism towards federal protection of voting rights expressed not only in Shelby County but also in this month’s decision in Brnovich v. Arizona, the court’s latest frontal attack on the right of minorities to vote. In a nod to the obvious conservative supermajority arrayed against voting rights, you will hear liberals say that the Lewis VRA needs to be passed in a way that is “constitutionally bulletproof.”
It is pleasing, no doubt, for elected officials and their constituents to believe that there is something that can be done legislatively to overcome the voter suppression favored by Republicans. Democrats need to believe that there’s something that they can “do,” and Democrats need their voters to believe that the party is doing what can be done. At this point, Democrats are basically Slim Charles from The Wire: “If it’s a lie, then we fight on that lie. But we gotta fight.”
But make no mistake, it is a lie. All of the comforting mouth noises in the world won’t change the fact that the Supreme Court is controlled by conservative justices appointed by Republicans who are hostile to minority voting rights. There is no such thing as a federal voting rights law that is constitutionally bulletproof. The Supreme Court can strike down anything it wants, and the conservatives have made it clear that they want to strike down the Voting Rights Act. Roberts has spent his entire career opposing the concept of minorities’ getting a fair chance at the ballot box (or anywhere else, for that matter). Arguing against an expansion of the Voting Rights Act was basically Roberts’s first real job. Clarence Thomas has likewise spent his entire career being the Black guy who tells white men what they want to hear: that they’ve done enough and Black people no longer need the protection provided by laws like the Voting Rights Act or the Civil Rights Act.
These men will not be swayed by mere congressional action to protect voting rights. They do not believe Congress should have the power to defend minorities. And they’ve said as much. All one has to do is read what they actually wrote in Shelby County v. Holder.
Liberals hoping to restore voting rights have pinned their hopes to a legal technicality embedded in Roberts’s opinion in that case. Section 5 of the Voting Rights Act required certain states and counties with a history of racial discrimination to apply for federal “preclearance” in order to change their voting laws. Shelby County, Ala., for instance, couldn’t reduce the number of polling places or require new forms of voter identification without first getting permission from the federal government. Preclearance was a fantastic way to stop segregationists from inventing new ways to disenfranchise Black voters, but the scheme trampled over the power of states to control their own elections. That’s cool by me, and by the Constitution’s 15th Amendment, but I’m a guy who knows the 15th Amendment was necessary because of where “states’ rights” arguments always eventually lead. Conservatives, on the other hand, are always eager to support the lost cause of states’ being able to discriminate against Black people in whatever way seems best to them.
In Shelby County, Roberts didn’t declare preclearance unconstitutional. Instead, he ruled that the formula used to determine which states and counties needed to subject themselves to preclearance (contained in Section 4 of the Voting Rights Act) was unconstitutional. Roberts said that by singling some states out for preclearance, and not others, Section 4 violated the equality of states. He then said that Congress was free to come up with some other formula and try again.
The Democrats selling hope and rainbows have seized on this opening and would have us believe that modernizing the formula in some way, a way that would apply to all 50 states, would appease Roberts and thus restore the protections of Section 5. That is, at core, what the Lewis VRA attempts to do.
The problem is that, at best, the Lewis VRA will just come up with a different formula for determining which states get singled out for special treatment. Any preclearance formula will result in some states’ having to ask permission to change their elections laws, while others do not, and that is the big no-no according to Roberts. Yes, Roberts spends a lot of time arguing that the old Section 4 formula (reauthorized in 2006) was too antiquated to be useful (which itself is Roberts substituting his personal opinion where a constitutional principle should be), but his core point is that states should not be treated differently from one another unless you can prove, to Roberts’s personal satisfaction, that different treatment is functionally the only way to stop voter discrimination. There is simply no reason to believe that Roberts will think that even the freshest formula justifies disparate treatment of the states.
The easiest way to get around Roberts’s objection to unequal treatment of states is to essentially make all 50 states subject to preclearance. That’s not what the old Lewis VRA was designed to do, but it’s an option for whatever bill Manchin seems to want. Everybody has to get preclearance.
But that bill would be even more likely to fail in front of Roberts. Remember, the entire discussion of Section 4’s coverage formula is just the Trojan horse Roberts is using to smuggle in his real argument: that preclearance is a violation of states’ rights.
In Shelby County, Roberts calls the original Voting Rights Act “extraordinary” nine times. He does not use that word as a compliment. He means it literally: He thinks that the Voting Rights Act is something “extra” that exists outside the “ordinary” operation of laws. Instead of a bedrock achievement of decency over darkness, Roberts views the VRA as an abnormal, emergency fire hose of federal power that should be turned off as soon as the crosses cool off. His entire opinion is written in the language of segregationists who object to the very notion that the federal government can step in and tell them what to do. A bill that essentially does away with Section 4’s coverage formula, or expands to the point where all states are subjected to Section 5’s preclearance scheme, would surely be viewed as a law of Northern aggression by Roberts.
Of course, not every conservative justice has time for the Roberts’s roundabout defenses of Jim Crow. Clarence Thomas would make Section 5 unconstitutional outright. I’m not just guessing. Thomas wrote a concurrence in Shelby County where he put it plainly: “I join the Court’s opinion in full but write separately to explain that I would find §5 of the Voting Rights Act unconstitutional as well.” Boom. If push comes to shove, I bet Roberts (along with Samuel Alito and Neil Gorsuch) are much more likely to go with Thomas than they are to find some coverage formula they can live with. Thomas’s concurrence is judge-speak for “mess around and find out.”
And here’s the thing: Thanks to conservative manipulation of the Supreme Court (and the stubborn refusal of liberals to retire at the opportune moment), the court today is even more conservative than the one that decided Shelby County in 2013. Even if the Lewis VRA magically satisfies anti-voting careerist Roberts, there needs to be at least one other conservative justice who goes along for that ride.
Who is that supposed to be? Alleged attempted rapist Brett Kavanaugh? Amy Coney Barrett, a person who, to get her job, danced a tarantella on the grave of the woman who wrote the dissent in Shelby County? I find it hard to believe the Federalist Society promoted people for the Supreme Court who disagree with Shelby County. Remember, all six of the conservative justices, including the alleged moderates Kavanaugh and Barrett, signed on to eviscerate another aspect of the Voting Rights Act, (this time Section 2) way back at the beginning of this month. What are congressional Democrats and President Biden hoping for, a change of heart? Do they think if we clap very hard, voting rights will live?
There is something the Democrats could do to restore the Voting Rights Act. Expand the Supreme Court. It’s actually the only reasonable thing Democrats can do. The Supreme Court has made it clear that there are not five votes to support the notion that nonwhites should have equal access to the ballot box. If Democrats do not expand the court, then they accept that premise and leave Black people—their actual base of electoral support—to fend for themselves against whatever ideas Republican governors can come up with to discourage them from voting.
But to expand the court, you first need to break the filibuster. As we all know, Joe Manchin and Kyrsten Sinema, and probably Dianne Feinstein and Chris Coons and three or four other spineless Democrats, don’t want to do that. Even if the filibuster is somehow defeated, it’s pretty clear that Biden would want to use that power to pass an infrastructure bill as well as these well-intentioned voting rights protections that will be easily overturned by the Supreme Court in a few years time. The will to do what is necessary to protect Black people from Republicans simply doesn’t exist in the current Democratic Party.
So they feed us this lie, this falsehood that a carefully tailored voting rights restoration bill will be above constitutional reproach, even though the conservatives on the Supreme Court have literally already told us precisely how they will strike down any new voter protection bill should they have to. Democrats are trying to wish a better Supreme Court into existence, because they don’t have the political strength to use their constitutional powers to make one.
I know this isn’t what most liberals want to hear, but it is the truth. Bills promising federal oversight of state elections are dead on arrival at the conservative Supreme Court. The only way to fix that problem is to fix that court. Everything else is a pointless show, a cacophony of sound meant to distract people from the cold reality that democracy is sinking.
Copyright c 2021 The Nation. Reprinted with permission. May not be reprinted without permission. Distributed by PARS International Corp.
Elie Mystal is The Nation’s justice correspondent—covering the courts, the criminal justice system, and politics—and the force behind the magazine’s monthly column “Objection!” He is also an Alfred Knobler Fellow at the Type Media Center. He can be followed @ElieNYC.
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