On this Independence Day, when we celebrate the U.S. as a democracy and as we await a Scalia-like successor to Justice Kennedy to be nominated for #SCOTUS, some thoughts on how the Court could set the cause of voting rights back significantly in the years to come: /1
The first way that the Court can negatively affect voting rights is by holding that democracy-enhancing laws like the Voting Rights Act or campaign contribution limits are unconstitutional. The second way is by upholding state laws making it harder to register and vote. /2
In the first category, at the top of my list is that #SCOTUS with a fifth hard conservative on race could either hold that Section 2 of the Voting Rights Act is an unconstitutional racial classification or interpret it so weekly it dies death by 1,000 cuts /3
With CJ Roberts as new median (not exactly "swing" Justice), I expect he will weigh heavily the political cost of directly overturning precedents, and may prefer "death by 1,000 cuts" route. Still, race colorblindness is one of his key issues, and that's bad news for the VRA /4
For example, they could start by overturning the California Voting Right Act, and then narrowly read the federal VRA in order to "avoid" constitutional difficulties with reading it as it has been traditionally interpreted. /5
The new five conservative Justices could well kill the "soft money" provisions of the McCain-Feingold law, and eventually hold that it is unconstitutional to limit the amount of money individuals or corporations could give directly to candidates /6
Or they could take a case which raises the "evidentiary burden" to sustain the constitutionality of campaign contribution limits, without directly striking them down. That would look better but have the same negative result for our democracy. /7
Court could also hold that voter initiatives which rein in partisan gerrymandering in congressional elections violates Constitution by taking away state *legislatures* power to set federal voting rules. Roberts wrote bitter dissent in 5-4 2015 Az. case rejecting that argument /8
That holding would mean that any voter initiated rules purporting to regulate congressional elections in the name of fostering democracy could be unconstitutional. /9
These earlier examples show how the Court could strike down democracy-enhancing rules in the name of favoring its (contested) reading of the 1st Amendment, Equal Protection Clause and other parts of Constitution. But there's more: /10
The Court can also give the green light to state rules that could make it harder to register and to vote, and that dilute minority voting power. For example: /11
The Court could hold that states could draw new legislative and congressional districts made up of equal numbers of citizens (or voters), not of people. Court left that issue open in Evenwel and it seems to interest Alito and Thomas (and likely Gorsuch and any new Justice) /12
Especially if coupled with new citizenship question on census, this could have a very negative effect on minority populations and large states with non-citizens. /13
The Court already seems poised to uphold stricter voter identification laws, and potentially documentary proof of citizenship laws, cutbacks on early voting and eased voter registration rules and other rules passed in red states to make it harder to vote /14
So what can be done?
--Political struggle can often help, such as the ballot measure in Florida to make it easier for felons who have completed their sentences to have their voting rights restored /15
--Political struggle can often help, such as the ballot measure in Florida to make it easier for felons who have completed their sentences to have their voting rights restored /15
---States like North Carolina, which has seen a terrible run of restrictive voting rules passed by the general assembly, need an end to the veto-proof legislative majority
---Reform needs to be mandated within the confines of what the Court declares. Public financing of campaigns, at least for now, seems safe if it could be enacted.
---Congress could outlaw partisan gerrymandering if there were the political will
---Congress could outlaw partisan gerrymandering if there were the political will
But the first step of the battle is educating and organizing about the stakes in the current Supreme Court battle. I've long sounded the alarm:
talkingpointsmemo.com/cafe/supreme-c… but until Kennedy left few outside law paid attention /18
talkingpointsmemo.com/cafe/supreme-c… but until Kennedy left few outside law paid attention /18
And I've demonstrated what it means for President Trump to appoint another Scalia to the Court on the question of voting rights in great detail in this book on Scalia's legacy amazon.com/Justice-Contra… /20
Things may get worse before they get better. Who knows if Thomas will go, and if Ginsburg and Breyer can hold on until there's a new Presidential election.
Republicans losing their majority in the Senate might stop appointment of most extreme #SCOTUS candidates after midterms /21
Republicans losing their majority in the Senate might stop appointment of most extreme #SCOTUS candidates after midterms /21
But as I wrote here @Slate, this is a moment for political action, not complacency, even if the battle against a new Trump #SCOTUS nominee will almost certainly be lost /22 slate.com/news-and-polit…
Political organizing now can help down the line later, as there will be many battles to preserve voting and democracy ahead. It won't be easy, but our country and the promise of what it can be (someday and again), demands that we try. /end
*weakly
