ThinkProgress

If Kavanaugh is confirmed, you can kiss the right to vote goodbye

Supreme Court nominee Brett Kavanaugh (Photo by Chip Somodevilla/Getty Images)

Chief Justice John Roberts has a plan to neuter the Voting Rights Act. All of it. He’s held onto this plan for nearly forty years, waiting for the day when he could deploy it.

That day is nearly upon us. If the Senate confirms Supreme Court nominee Brett Kavanuagh to replace retiring Justice Anthony Kennedy, Roberts will almost certainly have the votes he needs to gut America’s voting rights law. It’s not hard to guess what will happen next.

Consider Alabama. The former home of George Wallace has a strict voter ID law requiring voters to show ID in order to cast a ballot. In 2015, the state attempted to close down DMV offices in predominantly black counties, effectively keeping many black voters from obtaining the ID they needed to vote — though the state largely backed down due to a federal probe.

When the Voting Rights Act dies, states will be free to emulate Alabama — and to go much further. Polling places could be closed in predominantly black neighborhoods. Sunday voting and other practices preferred by voters of color will be eliminated. Gerrymandering will thrive. State lawmakers seeking to rig elections will grow more and more aggressive, and the Supreme Court will look the other way.

The plan

The Voting Rights Act prohibits any election law that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” Thus, a plaintiff challenging such a law does not need to prove that the people behind that law acted with racist intent. Rather, they only have to prove that the law would have the effect of making it harder for people of a certain race to vote.

It wasn’t always this way, however. In 1980, the Supreme Court held in Mobile v. Bolden that a Voting Rights Act plaintiff must show that the law they are challenging was enacted with a “racially discriminatory motivation.” Merely showing that the law would have a detrimental impact on minority voters was not enough to prevail.

Two years after Mobile, President Reagan signed the modern day version of the Voting Rights Act, establishing the rule against any law that “results” in racial voter disenfranchisement. He did so over the strenuous objections of a young Justice Department attorney named John Roberts. As an aide to Attorney General William French Smith, Roberts joined with a conservative faction within the Reagan administration that hoped to leave Mobile untouched.

Indeed, it is likely that this conservative faction believed that the law Reagan signed in 1982 is unconstitutional.

Possibly the single most toxic word in America’s race discrimination cases is “quota.” “Quota” is the word Justice Lewis Powell used in Regents of the University of California v. Bakke, when he struck down a California’ medical school’s affirmative action program that guaranteed that at least 16 percent of the student body would be people of color. Ever since Bakke, racial conservatives have used the word “quota” when they wish to imply that a program intended to cure racial injustice is unconstitutional.

So it’s significant that, four years after Justice Powell handed down his Bakke decision in 1978, Roberts worked on a memo arguing that the Voting Rights Act amendment Reagan signed in 1982 “would establish essentially a quota system for electoral politics.” By using the word “quota,” the conservative faction within the Justice Department communicated their belief that the amended Voting Rights Act is unconstitutional.

Admittedly, Roberts was only one member of this faction in 1982 — and a relatively junior member to boot. He was one of several attorneys who worked on this “quota system” memo, which appears to have been prepared for Assistant Attorney General William Bradford Reynolds. Roberts also worked on this memo nearly four decades ago. It’s possible that his views have since changed.

Except that even a brief look at Roberts’ record as chief justice suggests that, if anything, his views have hardened since the Reagan administration.

The way to stop discrimination on the basis of race

Chief Justice Roberts sits at the apex of the judiciary. He is both the titular head of America’s third branch of government’s and, with the retirement of Justice Anthony Kennedy, its single most powerful member. Indeed, with Roberts poised to become the Court’s nominal “swing” vote, he could very well be the most powerful judge in the world.

Yet, for all his power and accomplishments, Roberts looks at race through the eyes of a child. Blind to nuance, and incapable of seeing the many subtle ways that racism still infects the United States, Roberts once summarized his entire approach to racial justice in a single sentence — “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Roberts wrote those words in Parents Involved v. Seattle School District, a case involving two public school districts’ efforts to desegregate their public schools by giving a slight preference to school assignments that helped foster diversity. In Roberts’ worldview, any consideration of race — whether it is done to maintain a system of apartheid or to tear down segregation — is equally odious.

The sin the Supreme Court addressed in Brown v. Board of Education, according to Roberts, was that “schoolchildren were told where they could and could not go to school based on the color of their skin.” The same thing is true about school desegregation plans. And thus, to Roberts, both Jim Crow and the desegregation plans at issue in Parents Involved are repugnant — and for the exact same reason.

Just a few years ago, moreover, Roberts made clear that he views laws banning “disparate impact” discrimination — that is, laws like the Voting Rights Act which prevent state action that has a disproportionate effect on people of color — as a form of race conscious discrimination that is no different than the desegregation plans in Parents Involved.

Texas Department of Housing and Community Affairs v. Inclusive Communities Project had no business coming before the Supreme Court. The issue in Inclusive Communities was whether the Fair Housing Act, like the Voting Rights Act, targets disparate impact discrimination. Yet, when the Supreme Court agreed to hear this case, eleven federal appeals courts had already considered this issue — and all eleven agreed that the Fair Housing Act does, indeed, target disparate impact discrimination. The Supreme Court typically does not take up cases where the lower courts are in such overwhelming agreement.

Inclusive Communities, moreover, threatened to gut the federal ban on housing discrimination. In the years leading up to this decision, for example, the Justice Department wielded disparate impact suits to force the mortgage lender Countrywide into a $335 million settlement after the lender “charged higher fees and rates to more than 200,000 minority borrowers across the country than to white borrowers who posed the same credit risk.”

Without the power to bring disparate impact suits, it is far from clear that DOJ could have won this case, as it would have faced the nearly impossible task of proving that Countrywide intentionally sought to charge higher rates to people of color.

Ultimately, the Court decided 5-4 not to end disparate impact suits involving housing discrimination — though with retiring Justice Kennedy providing the key fifth vote. Roberts didn’t just join the dissent in Inclusive Communities, he also suggested at oral argument that all laws banning disparate impact discrimination are unconstitutional.

“Is there a way to avoid a disparate-impact consequence without taking race into account in carrying out the governmental activity?” Roberts asked one of the attorneys defending the Fair Housing Act, adding that “it seems to me that if the objection is that there aren’t a sufficient number of minorities in a particular project, you have to look at the race until you get whatever you regard as the right target.”

Thirty-three years after Roberts joined with the Reagan administration officials comparing a disparate impact law to a quota system, Roberts’ views have not changed. To Roberts, any law that examines the effect of a particular law on a particular racial group is no different than the affirmative action quota struck down in Bakke. The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

White racial innocence

So, to summarize, Chief Justice Roberts believes — and has believed for a very long time — that laws which examine the effect various policies have on different racial groups are illegitimate. Yet, for his first 13 years as chief justice, Roberts was unable to act on this belief because Justice Kennedy wouldn’t sign onto it.

Kennedy won’t be around very much longer, and Trump’s choice to replace him, Judge Brett Kavanaugh, is an orthodox conservative who is unlikely to break with Roberts on questions of racial justice. That means that the Voting Rights Act, as amended by the law President Reagan signed in 1982, is likely to be on the chopping block very soon. Mobile v. Bolden is likely to be the law again very, very soon.

In theory, such a decision wouldn’t completely erase the Voting Rights Act. Voting rights plaintiffs could still prevail if they showed that state lawmakers acted with racist intent when they enacted a particular law. In practice, however, the kind of Voting Rights Act that Chief Justice Roberts envisions would do little, if anything, to protect voting rights.

Consider Abbott v. Perez, which the Supreme Court handed down last month.

The facts of Perez are odd and, frankly, more than a little absurd. In 2010, Texas enacted legislative maps that were eventually determined to be illegal racial gerrymanders. This created a brief crisis in 2012. Texas’ primary elections were looming closer and closer, but the state lacked legal maps that it could use to conduct that election. With the election drawing closer, a federal court eventually drew rushed, interim maps that left many of the state’s illegally gerrymandered districts intact.

As this court emphasized in its opinion lay out these hastily drawn maps, “this interim map is not a final ruling on the merits of any claims asserted by the Plaintiffs in this case or any of the other cases consolidated with this case.” Rather, the maps were drawn due to “the need to have the primaries as soon as possible, and the resulting need for the Court to produce an interim map with sufficient time to allow officials to implement the map.”

Then, in 2013, the Texas legislature took these interim maps and wrote them into state law. Texas then claimed that its new maps were immune from legal challenge — even though they left many of the state’s illegal districts intact — because they were originally drawn by a court.

In Perez, a 5-4 Supreme Court largely went along with Texas’ scheme. “Whenever a challenger claims that a state law was enacted with discriminatory intent,” Justice Samuel Alito wrote for the Court, “the burden of proof lies with the challenger, not the State.” It wasn’t enough, moreover, to prove that the state’s districts were intentionally drawn to disadvantage voters of color in 2010. The plaintiffs in Perez had to prove for a second time that the exact same districts were drawn with racist intent when they were reenacted in 2013.

According to Alito, the Perez plaintiffs could not clear this bar. The only direct evidence brought to our attention suggests that the 2013 Legislature’s intent was legitimate,” Alito claimed. “It wanted to bring the litigation about the State’s districting plans to an end as expeditiously as possible.”

Take a moment to get your head around that logic. Alito’s conclusion is that Texas’ maps weren’t drawn to preserve a racial gerrymander, they were drawn to shut down litigation challenging a racial gerrymander. And that was enough to defeat the plaintiffs’ claims in Perez.

Perez, in other words, holds that courts must apply an extraordinarily strong presumption of white racial innocence whenever a state legislature is accused of racial voter discrimination. It was already difficult for plaintiffs alleging intentional race discrimination to prove their cases before Perez was handed down. After Perez, it will only be possible in the most egregious cases — if it is possible at all.

Voting right plaintiffs will also need to overcome another obstacle in the world Roberts is about to create. To properly understand this potential barrier, we must first consider some numbers.

In 2016, according to CNN’s exit polls, 89 percent of African Americans, 66 percent of Latinos, and 74 percent of non-white voters generally preferred Democrat Hillary Clinton to Republican Donald Trump. And Clinton underperformed President Obama among these same groups — Obama won 93 percent of black voters and 71 percent of Latinos.

With that in mind, let’s recall that one reason why racial voter discrimination remains so common in 2018 is that race is an effective proxy which state lawmakers can use to determine how many voters are likely to cast their ballots.

In other words, lawmakers can alter the electoral landscape simply by closing down polling places in a black neighborhood. Or by putting in place voter ID laws that primarily target minorities. Or by drawing district lines to minimize the impact of Latino votes. Or by taking any one of the numerous other steps at their disposal to target voters of color. BY doing so, those lawmakers can be pretty sure that they are undercutting Democrats and boosting Republicans.

Yet, when someone actually brings a lawsuit challenging such racial voter discrimination, the same lawmakers can turn around and claim that they weren’t discriminating on the basis of race — they were discriminating on the basis of partisan affiliation — something the Roberts Court has steadfastly refused to correct.

John Roberts’ America, in other words, is a place where black voters wait hours to cast a ballot, while white voters waltz in and out of the polls. It is a place where poor voters must spend four hours on the bus to get they ID they need to vote. It is a place where mapmakers decide in advance who will win elections. And it is a place where the mapmakers are white.

And this America will soon be our America.