On April 6, 2020, the Supreme Court decided a case called Republican National Committee v. Democratic National Committee. The Court’s opinion, with no Justice’s name attached to it, ruled in favor of the Republican Party and held that absentee ballots for the April 7 Wisconsin primary had to be postmarked by that day in order to be counted—this despite the fact that many absentee ballots had not yet been delivered to voters and the results were not to be announced until the following Monday, April 13. Justice Ginsburg’s dissent predicted that by failing to consider the public health crisis, the decision would “result in massive disenfranchisement.”
This decision, combined with a ruling by the majority-Republican Wisconsin Supreme Court, left voters with an unenviable choice. Stay home and be safe or go vote and take a risk. Thousands of Wisconsin voters chose to take the risk, but only a handful of polling places were able to open, so many ended up standing in line for hours, some until after midnight.
Despite the Republican victory in court, that party’s conservative candidate for a seat on the state Supreme Court lost, and the liberal Democrat won decisively. This outcome offers at least two takeaways. One is that when it comes to our most fundamental American institution, government “of the people,” no one should underestimate the American voter. Another is that in a rational world, the “Wisconsin model” is a good example of how not to run an election during a pandemic.
The Supreme Court’s decision in the Wisconsin primary case is just one of many cases where the Court has disenfranchised voters by ignoring the inevitable effect of a narrow, literalist approach to voting rights. And these rulings, not just in the Wisconsin case but also in cases from Alabama, Florida, and Texas, have one thing in common: By 5 to 4 votes, the Court’s conservatives have sided with the Republican party.
Chief Justice Roberts has taken the lead, as he did in 2013 when he wrote the opinion in Shelby County, Ala. v. Holder. In that case he wrote that the preclearance provisions of the Voting Rights Act of 1965, designed to ensure the right of minorities to vote, were no longer needed, and therefore imposed an unconstitutional burden on state control of elections. According to Roberts and four other Justices, past discrimination may have justified federal election controls in certain states in the 1960s, but, the “flagrant,” “widespread,” and “rampant” discrimination that justified the law is a thing of the past.
It took no time for Texas, Mississippi, and Florida to revive old ways of making it harder for some citizens to vote. Other states have followed suit, including Alabama, Arkansas, and North Carolina. I don’t suppose it’s a coincidence that the impact has disproportionately affected citizens of color, and that these are all red states.
We are in the midst of a pandemic. But the Supreme Court seems all but indifferent to that inconvenience. In July, after federal judges in Alabama tried to make it easier to vote absentee, the Court said no.
Later that month, the Court turned to Florida’s recent constitutional amendment granting most convicted felons the right to vote after serving their prison terms. Without giving any explanation, the Court ruled that these newly enfranchised voters could be barred from voting if they hadn’t paid their court fines. Justice Sotomayor noted that this ruling prevented otherwise eligible voters from participating in the election “simply because they are poor.”
Shades of Jim Crow. Back in the late 19th century, many southern states limited access to the ballot by imposing poll taxes and literacy tests. The effect was to disenfranchise African Americans which, of course, was the whole idea. In 1898, in Williams v. Mississippi, the Court said that the laws were not discriminatory since they applied to everyone. Just like Plessy v. Ferguson, decided two years earlier. In that case the Court upheld “separate but equal” segregated facilities on the basis that they were race-neutral and therefore did not violate the equal protection clause of the Fourteenth Amendment.
While the school desegregation case, Brown v. Board of Education (1954), put an end to that mistaken ruling, nothing seems to have changed when it comes to voting rights. The Chief Justice and his four conservative colleagues did a great disservice to democracy last year when they refused to take up the question of political gerrymandering. This year, they continue to let partisan politicians run roughshod over the most non-partisan right of all, the right to vote.
I have long resisted the notion that the Supreme Court has become a political institution. Even after Bush v. Gore I held to that view. It appears that I was mistaken.