Conservative Supreme Court majority has dealt a fatal blow to voting rights law
The United States is in the midst of a historic wave of voter suppression laws proposed and passed by Republican-controlled state legislatures across the country. The Brennan Center for Justice reports that “between January 1 and July 14 of this year, at least 18 states enacted 30 laws that restrict access to the vote.” These laws make postal voting and early voting more difficult, impose stricter voter identification requirements, and make mistaken voter purges more likely, among other things. More than 400 bills containing provisions restricting access to the vote, disproportionately affecting communities of color, were introduced in 49 states during the 2021 legislative sessions.
As the GOP justifies its crackdown by embracing Trump’s big lie, claiming that the 2020 presidential election was stolen from him, the US Supreme Court issued a July 1 ruling that makes the situation even more dire . In Brnovich v. Democratic National Committee, the court gutted section 2 of the 1965 Voting Rights Act, which stipulated that election laws with a racially discriminatory impact could be blocked. In the 2013 High Court decision in Shelby v. Holder, the Conservative majority of judges struck down Section 5 of the Voting Rights Act, which allowed federal authorities to block the establishment of voter suppression laws and rules in jurisdictions with a history of discrimination .
Between the Lines Scott Harris spoke with Steven Rosenfeld, editor, correspondent and senior editor for Voting Booth, a project of the Independent Media Institute. Here he talks about his recent article, “Samuel Alito’s Assault on Voting Rights Law Plunges Supreme Court into Age of Segregation. “
STEVEN ROSENFELD: Lots of federal judges who were appointed by President Richard Nixon – now people will forget he ran on a state’s southern rights strategy – and we are seeing that same state’s southern rights strategy resurface exactly in Texas and other similar states. But what happened was these conservative judges in the ’70s, they looked at civil rights legislation and they did a very nifty thing from the point of view of lawyers who didn’t want to support a bigger equality before the law.
They changed what is called the burden of proof. And what I mean by that is when you go to court you have to prove and present evidence that, you know, your claim is valid and someone has been injured. So what they did was they changed it to have “the effect of a law” – which means, you know, just, it’s reality if it hits the sol – to “the intention of lawmakers when they passed it” which is much harder to prove, because as you know a lot of politicians will say one thing with a whole different set of motives and that’s just fine.
So the reason I am mentioning all of this is that this most recent Supreme Court ruling resurrects the burden of proof with respect to this last remaining section of the Voting Rights Act. So that means it essentially gives states and their legislators more leeway to say, “Well, we just want to protect the purity of democracy.” And then they have these different laws and policies that actually make it more difficult to vote in a lot of different contexts. And that’s what’s pernicious about it because fundamentally it changes that burden of proof. And he does it in such a way – and this is truly remarkable – he basically says that anything new about the way people vote or are counted, people who have access and options since 1982 is for the most irrelevant. This dates back to 1982.
So all the advance polls, “Souls to the Polls” I mean you just have to name it, you know, automatic voter registration, polling day registration, mail voting and sending out all registered voters – this is now all on the line. And if states want to target this, the Supreme Court has signaled – or the conservative majority in the Supreme Court has signaled – that they will stand and enforce these state laws. So it’s really, really turning back time.
SCOTT HARRIS: Steven, I wanted to ask you about another aspect of this decision in Brnovich v. Democratic National Committee and that concerns the big lie, as it seems the Conservative majority of judges are now on the side of justifying laws that make it harder for people to vote on protecting electoral security, so to speak, even though this electoral security is based on lies and lies such as Donald Trump’s lie he delivered about how the election was stolen from him in 2020.
STEVEN ROSENFELD: (Judge Samuel) Alito said, “If people have to work a little harder to get a ballot and vote, then they have to work a little harder. You know, it’s like going out to the store in the rain, or I forget the analogy. But he said it shouldn’t necessarily be that easy. And then he said – getting back to the state rights position – he just said that, you know, states have the power to make it difficult to vote and they can cite this phenomenon of electoral fraud as a justifiable pretext. to control polls. And what is really pernicious about this – you have a false pretext that allows legislatures to go too far and exercise excessive oversight at the same time that they say: I even think everyone deserves to vote. It’s really reactionary. It really is a step backwards.
SCOTT HARRIS: Steven, in your recent article you quote a law professor who basically states that the Voting Rights Act is now essentially dead.
STEVEN ROSENFELD: Yes. David Schultz, Hamline University, specializes in elections, presidential elections too. Yeah and he cites this proof problem. He says the question of proof is critical. He says the court is giving states the benefit of the doubt that their laws are valid; he says the court rejects the inconvenience. He says they are not proof that they are creating less opportunity. He leaves out the small disparities, which means, for example, “Well, if you know, if Native Americans in Arizona or North Dakota are having trouble getting a ballot, because they don’t. no mailing address or ID, or they don’t have public transport for some other reason, well, whatever, that’s their problem. So it shifts the burden of proof to prove what’s on the minds of lawmakers. And you can’t prove someone else’s state of mind most of the time in court, especially if it’s elected politicians saying otherwise in public. It’s an almost impossible hurdle to win this kind of case.
For more information on the voting booth project, visit Independentmediainstitute.org/voting-booth.