Whose Vote Counts?
The Republican assault on voting rights, years in the making, is now out in the open
John Roberts was right. Seven years ago, before Mitch McConnell became Senate majority leader, before Donald Trump came down that elevator, before Merrick Garland and Amy Coney Barrett and a dominant conservative majority on the highest court, Roberts wrote the majority opinion in Shelby County v. Holder. And his logic, on its face, seemed reasonable.
For decades, bipartisan coalitions in Congress had reauthorized the Voting Rights Act of 1965, designed to root out entrenched racial discrimination in voting. To enforce its objective, the law included a preclearance requirement forcing certain states and local governments to obtain permission from the federal government before changing any voting rules or regulations. An accompanying provision detailed the coverage formula determining the jurisdictions subject to the preclearance requirement.
After nearly a century of state-sponsored voter intimidation and suppression concentrated—but not limited to—the former Confederacy, the federal government finally had teeth to uphold the rights enshrined in the 14th and 15th Amendments, amendments whose passage was paid for in the blood of Union soldiers—Black and white.
“Nearly 50 years later,” Roberts wrote in 2013, “things have changed dramatically.” Didn’t he have a point? Flagrant and pervasive violations of voting rights like literacy tests and poll taxes were things of the past. Both Black voting turnout and the number of minority officeholders had increased in the late 20th century. To Roberts, efforts to right past discrimination were a clear and present danger to the “equal sovereignty of the states.” In striking down the coverage formula and siding with Shelby County, Alabama, the Court effectively gutted the power of the preclearance requirement itself.
Tragically, the years since the Shelby ruling have proven a warning from Ruth Bader Ginsburg all too prophetic. In her dissent, the late justice wrote, “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Left to their own devices, states once covered by the preclearance enacted laws to curtail or remove online voting registration, limit early voting, and implement draconian voter ID requirements. Of course, these measures were written and carried out in race-neutral language to obfuscate their true targets. Proponents claimed they were simply guarding against the specter of voter fraud. Who could argue with that, they reasoned.
The assault on voting rights had begun and was only to intensify.
All of this brings us to the present. As I write these words, more than 93 million Americans have voted in the general election. Millions more will show up to cast a ballot on Tuesday. Yet a surge in turnout this year—and the new voting options granted to individuals due to the pandemic—shouldn’t obscure a damning truth: at all levels, Republicans are working to make sure that fewer votes count. From the president to state legislatures to GOP election lawyers, the entire party is invested in solidifying a smaller electorate that more closely aligns with their core constituencies.
And this strategy goes well beyond any previous concern about (nearly non-existent) voter fraud. There’s no other way to explain demands to throw out thousands of votes in urban areas or regulations that make it easier to vote with a gun permit than a student ID or support for monitoring “suspicious activity” in minority neighborhoods. Modern voter suppression rarely rises to the level of the violence and overt barriers that marked the past, but that doesn’t make it any less real. Suppression today means fostering an environment of cynicism and exhaustion—it’s about erecting every impediment to voting short of violence.
In 1965, for the first time in its history, America formally rejected the monopoly white supremacists—most of them segregationist Democrats—had on voting rights in this country. We finally made good on the promise of the Constitution, both as it was written in 1787 and as it was amended after the Civil War. Today, however, Republicans are all but telling us that their survival depends on their ability to limit the pool of people who can cast ballots. There’s no hiding it anymore. Trump himself acknowledged that a friendly Supreme Court might be his only path to victory.
What does this say about our democracy? What does it say about our chances to resolve disputes and address real problems in the years ahead? Can we avoid violence and unrest if a growing majority believes its voice is silenced by a minority with structural advantages in the Senate and Electoral College and the judiciary at its back?
The Shelby decision looms large in my mind today. Turning back the tide of voting restrictions that followed the ruling starts this week. - MS
Photo credit: Jim Bourg, Reuters
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