The Supreme Court’s existential threat to American democracy

Having ruled that Section 4 of the Voting Right Act is unconstitutional and made much of section 2 a dead letter through willful misconstrual, Supreme Court Republicans appear to have their sights set on Section 2’s results test:

The Supreme Court announced on Friday that it will hear two consolidated cases that could eviscerate the right to be free from racial discrimination in voting. And the Court agreed to hear these cases just weeks before the Senate is likely to confirm Judge Amy Coney Barrett to the late Justice Ruth Bader Ginsburg’s seat on the Supreme Court, giving a Republican Party that is often hostile to voting rights a 6-3 majority on the nation’s highest court.

It’s difficult to exaggerate the stakes in Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee.

The cases involve two Arizona laws restricting the right to vote. One law requires ballots cast in the wrong location to be tossed out, while the other prevents individuals from delivering another person’s absentee ballot to the elections office. But as these cases arise under the Voting Rights Act — a seminal law preventing racist voting laws that the Supreme Court has already weakened considerably — they provide a conservative-majority Supreme Court the opportunity to dismantle what’s left of the Voting Rights Act.

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As a young lawyer working in the Reagan administration, Chief Justice John Roberts unsuccessfully fought to convince President Reagan to veto the law establishing this results test; some of his memos from that era even suggest that the results test is unconstitutional. And Roberts is, if anything, the most moderate member of the Supreme Court’s Republican majority.

Now that these cases are before the Supreme Court, in other words, the Court’s Republican-appointed majority could potentially dismantle the results test. At the very least, it could water down that test to such a degree that it no longer provides a meaningful check on racism in elections.

Simply put, the right of voters of color to cast a ballot is now in greater peril than at almost any point since the Jim Crow era. Cases like Shelby County and Perez already stripped the Voting Rights Act of much of its force; the Democratic National Committee cases could finish that job.

These cases, moreover, are not just a historic threat to the right to vote. They are potentially a historic threat to the Democratic Party’s ability to compete in US elections.

Because voters of color in general, and Black voters in particular, are especially likely to vote for Democrats, Republican lawmakers can use race as a proxy to identify communities with large numbers of Democratic voters. They can then enact election laws targeting those communities, confident that the law will mainly disenfranchise Democrats.

The Court’s decision to take these cases, in other words, puts the debate over whether Democrats should add additional seats to the Supreme Court in order to dilute its Republican majority into stark relief. If the Democratic National Committee cases end badly for the Voting Rights Act — and if Democrats control Congress and the White House when these cases are handed down — Democrats may have to choose between radical steps like packing the Court or being permanently exiled to the political wilderness.

It’s worth noting that striking down the results test would be even more ridiculous than Shelby County, which is already arguably the most ridiculous major opinion in the United States Reports. The core pretext for Shelby County was that preclearance was an unusual mechanism that required heightened justification. This is still a very stupid argument — the Reconstruction Amendments authorized congressional implementation precisely because the federalism established by the Constitution of 1787 was inadequate to protect civil rights and innovative legislation might be needed. But to apply it to a case in which there isn’t even an unusual mechanism involved would amazingly be even worse.

Should the Roberts Court finish off the most important civil rights act since Reconstruction — and this is the most likely outcome even if Republican self-infection prevents them from confirming Barrett, since there’s no moral daylight between John Roberts and Bull Connor on voting rights — expanding the Court is a political and moral necessity. We fought a civil war over this. Judicial independence is a two way street — an appellate Court acting as a lawless superlegislature doesn’t merit independence from legislative constraint, and voting rights are at the very heart of democracy. If the independence of the Court is severely restricted, John Roberts will have only himself and his consuming obsession with stopping Black and Brown people from voting to blame.