The Supreme Court made it abundantly clear this term that it is not concerned about voting rights.
The justices on the nation’s highest court this year repeatedly sided with Republican-controlled states seeking to maintain their election systems, turning their backs to arguments that gerrymandering and purges disproportionately hurt minority voters.
In a 5-4 ruling this week, the court upheld Texas’ congressional districts, despite a lower court ruling that found they diluted the voting power of Latino citizens. And earlier this month, the same five justices ruled that Ohio could continue to purge inactive voters from the rolls, despite evidence that low-income, minority voters are more likely to be affected.
The court also declined to rule on cases over partisan gerrymandering. With Justice Anthony Kennedy’s retirement, the next opportunity they have to consider the issue will likely be under a far more conservative court.
The rulings come just five years after the Supreme Court gutted the landmark Voting Rights Act in Shelby County v. Holder, a decision that laid the groundwork for GOP states to pass suppressive voting laws. Rick Hasen, an election law expert and professor at University of California Irvine, said that this term’s voting decisions show that the court is moving further away from the protection of voters.
“Five years after the Court in Shelby County promised us that other parts of the Voting Rights Act would protect minority voters, this term’s cases show it is not true,” he said. “Gerrymandering is easier, and laws making it harder to register and vote passed in many red states seem more likely to be upheld.”
Kristen Clarke, the president and executive director of the Lawyers’ Committee for Civil Rights Under Law, agreed. She told ThinkProgress that states previously covered by the VRA and elections officials across the country have been emboldened by the Shelby County decision, and the Supreme Court has done nothing to stop them.
“We are seeing a court that is narrowing access to the ballot box by endorsing state efforts that make it harder for people to vote,” she told ThinkProgress.
Voter Purges
Justice Samuel Alito wrote in a 5-4 opinion on June 11th that Ohio’s system of purging inactive voters from its rolls does not violate the National Voter Registration Act. The court sided with Republicans who claim the purges are necessary to prevent voter fraud, and ignored arguments from Democrats that say the efforts are part of an attempt to suppress voters who tend to favor Democrats.
Though the ruling concerns an Ohio law, the impact will be felt across the country. Six other states — Georgia, Montana, Oklahoma, Oregon, Pennsylvania and West Virginia — use similar practices to remove voters from the rolls if they fail to vote.
A spokesperson for Pennsylvania’s Department of State, which runs elections, told ThinkProgress that the state plans to continue with its purge system after the Supreme Court’s ruling. “We are very unlikely to make any change as a result of the ruling,” the spokesperson said, “The Court affirmed a system very similar to ours, although Ohio’s is a bit stricter.”
Clarke said other states could adopt similar practices of their own. A total of 17 GOP-controlled states signed onto a brief supporting Ohio’s position, indicating that they would be interested in using a similar list-maintenance procedure if it’s found to be constitutional.
“One concern that we have in the wake of the court’s ruling is that we may now see states instituting copycat measures in their state,” Clarke said. “Vigilance will be required to scale back the fallout from these devastating rulings.”
Gerrymandering
On Monday, Alito wrote an opinion largely upholding congressional and state legislative districts in Texas that lower courts had said discriminated against Latino voters and prevented them from electing their candidates of choice.
In her dissent, Justice Sonia Sotomayor pointed out that the Constitution and the Voting Rights Act “secure for all voters in our country, regardless of race, the right to equal participation in our political processes.” But the court’s conservative majority said there was nothing to indicate that Texas acted in bad faith.
The ruling came on the same day that the court declined to hear a case about partisan gerrymandering in North Carolina, instead returning the case to a trial court to determine if the plaintiffs had standing to bring the suit. The week prior, the court also avoided issuing decisions on two other partisan gerrymandering cases from Wisconsin and Maryland.
“The court has clearly struggled with this question — Justice Kennedy in particular,” Clarke said about partisan gerrymandering. “But the facts in the Wisconsin case could not be any starker.”
The issue could come back to the justices at a later date, but without a ruling, we’re likely to see far more racial and partisan gerrymandering in the near future and litigation seeking to redraw fair maps.
“Without fair maps, I think that we do great harm to democracy and that the public’s confidence in our democratic process will be significantly undermined,” Clarke said.
Looking ahead
Kennedy’s retirement means the future of voting rights in this country will only get worse, Hasen said.
Trump will get to pick a successor from his list of largely white men who are unlikely to support voters’ claims of discrimination and who are very unlikely to restore the now decimated Voting Rights Act.
“What’s happened with judicial nominations in general has been deeply troubling,” Clarke said. “We have seen a president who consistently has put forth nominees that carry records that reflect bias and that raise grave questions about their ability to be fair and independent.”
Many of the options on Trump’s list of potential Supreme Court nominees have indicated their disdain for voting rights. William Pryor, a judge on the Eleventh Circuit and a likely contender, he wrote a decision in 2009 rejecting a challenge to Georgia’s voter ID law. According to SCOTUSblog, he characterized the case as addressing “whether the legitimate interest of the government of safeguarding the exercise of a civil right is outweighed by a corresponding burden of that right.”
He also sat on a three-judge panel at the district court level that upheld Alabama’s racially gerrymandered maps after the 2000 census that created numerous legislative districts with a majority minority population. Pryor rejected an argument that the plan segregated minority voting power into a few districts.
Diane Sykes, a conservative judge for the Seventh Circuit and also a likely contender, has ruled that Wisconsin’s voter ID law is constitutional. The ruling allowed the law to go into effect before the November 2014 election.
With the 2020 redistricting cycle around the corner, Clarke said its especially unfortunate that the Supreme Court has missed opportunities to weigh in on what constitutes impermissible gerrymandering.
“This may be the first redistricting cycle without the full protections of the Voting Rights Act in place,” Clarke said. “I fear we might see significant mischief across the country when it comes to fair maps and a fair redistricting process, and none of that was aided by the court failing to opine on the open-ended question about what constitutes extreme gerrymandering in our country.”
In an upcoming term, the Supreme Court could also take on the numerous legal challenges to the Trump administration’s addition of a citizenship question to the 2020 census. The result would impact voting, fair maps, and elections for at least a decade to come.