John Roberts was 26 years old, and he was outraged that he’d just been outmaneuvered by older and much more experienced political hands.
It was 1981. Roberts had just completed a prestigious clerkship with Justice William Rehnquist — then the most conservative judge to serve on the Supreme Court in decades — and, as an aide to Attorney General William French Smith, Roberts was tasked with making the case against one of the most consequential voting rights laws in the nation’s history.
The House had recently passed legislation extending the Voting Rights Act of 1965 — a seminal civil rights bill that dismantled much of Jim Crow — and shoring up one of its key provisions after a 1980 Supreme Court decision had severely weakened the law. Meanwhile, a filibuster-proof majority of the Senate had co-sponsored the same bill.
Roberts was distraught.
“Something must be done to educate the Senators on the seriousness of this problem,” Roberts wrote his boss, Smith, just a few days before Christmas. In a subsequent memo, he argued that the rapidly advancing bill — which now forms much of the backbone of American voting rights law — was “not only constitutionally suspect, but also contrary to the most fundamental tenants [sic] of the legislative process on which the laws of this country are based.”
Roberts’s early crusade against voting rights ended in failure. Though President Reagan preferred a weaker voting rights law — he once described the Voting Rights Act as “humiliating to the South” — the conservative president eventually bowed to political pressure and signed the legislation Roberts deemed contrary to many of our nation’s “most fundamental” tenets.
But time was on Roberts’s side. He rose within government and within the legal profession until President George W. Bush made him chief justice of the United States in 2005. Roberts is now the most powerful judge in the country. As Congress has grown more and more dysfunctional, the Supreme Court is increasingly the locus of policymaking within the United States.
As chief justice, Roberts has occasionally shown moderation. He famously saved most of the Affordable Care Act — twice! And he more recently cast a surprising vote to preserve the constitutional right to an abortion (although he simultaneously signaled that this right is unlikely to last much longer).
But Roberts has shown no such moderation on voting rights. Among other things, Roberts dismantled much of the Voting Rights Act in Shelby County v. Holder (2013), and he’s joined decisions making it much harder for voting rights plaintiffs to prove they were victims of discrimination. On the basic question of who is allowed to vote and which ballots will be counted, the most important issue in any democracy, Roberts is still the same man who tried and failed to strangle the Voting Rights Act nearly four decades earlier.
And, despite his early failure, Roberts is now on the cusp of total victory.
The conservative perspective on voting rights, explained
Before we dive into the many specific incursions Roberts and his Court have made on voting rights, it’s helpful to see the history of the Voting Rights Act through the eyes of a conservative Republican.
As originally enacted, the Voting Rights Act required jurisdictions with a history of racist voting discrimination to “preclear” any new voting-related laws with the Justice Department or with federal judges in Washington, DC. But this preclearance provision was initially scheduled to expire five years after the law was signed in 1965.
That meant that in 1970, while Richard Nixon was president, Congress had to decide whether to extend the preclearance requirement or allow it to expire. And, because Congress never made the preclearance requirement permanent, Congress also chose to extend this requirement again in 1975, in 1982, and in 2006.
Each time the Voting Rights Act was renewed, it was signed by a Republican president — including at least two Republicans who’d previously criticized the law. As University of Massachusetts Amherst political scientist Jesse Rhodes lays out in his book, Ballot Blocked: The Political Erosion of the Voting Rights Act, conservative Republicans and Southern Democrats often attempted to weaken the act during the congressional debates over renewal. But they were repeatedly outflanked by liberal lawmakers and by civil rights advocates.
President Nixon, for example, proposed eliminating the preclearance provision, while simultaneously proposing provisions that strengthened other parts of the law — including bans on literacy tests and state residency requirements for voters in presidential elections. But civil rights organizations united against Nixon’s plans to undercut preclearance, while Sen. Strom Thurmond (R-SC), the former segregationist presidential candidate, declared that “if we have to have some voting rights bill, I would hope it would be the Administration’s.”
Ultimately, Nixon abandoned his opposition to preclearance and signed an expansive Voting Rights Act renewal into law. To add insult to injury for conservatives, the final bill included Nixon’s provisions banning literacy tests and residency requirements.
A similar dynamic played out 12 years later during Roberts’s failed effort to water down the 1982 renewal of the Voting Rights Act.
Two years before that renewal, the Supreme Court decided City of Mobile v. Bolden (1980), which interpreted a key provision of the act so narrowly as to potentially render it useless. Broadly speaking, the Voting Rights Act created two separate procedures to stop racist voting laws. Section 5 of the act laid out the preclearance regime I described above, while Section 2 permitted voting rights plaintiffs to bring lawsuits challenging racist laws that are already in effect.
Mobile established that Section 2 plaintiffs must show that the lawmakers who enacted a particular voting-related law acted with “racially discriminatory motivation.” That’s an extraordinarily high bar because the authors of voter suppression laws are often quite adept at drafting legislation that appears to be racially neutral on its face, even if it has the effect of disenfranchising voters of color.
Liberals in Congress and voting rights advocates swiftly rallied around an amendment to the Voting Rights Act that would undo Mobile and rescue Section 2 plaintiffs from the task of trying to read lawmakers’ minds. That amendment banned any voting practice 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, even if a plaintiff could not prove racist intent, they could still prevail if the law had a disparate negative effect on voters of color.
It was this amendment that the young John Roberts fought so hard to kill. As the voting rights journalist Ari Berman writes, “Roberts wrote upwards of 25 memos opposing an effects test for Section 2.” He “drafted talking points, speeches and op-eds for” senior Justice Department officials opposing the amendment, and “prepared administration officials for their testimony before the Senate; attended weekly strategy sessions; and worked closely with like-minded senators on Capitol Hill.”
But opposition to the Section 2 amendment fizzled in Congress. As Sen. Trent Lott (R-MS) told Reagan in October of 1981, conservative lawmakers feared that “anyone who seeks to change” an expansive voting rights renewal that had already passed the House “will risk being branded as racist.”
Ultimately, Reagan signed the bill, extending preclearance for another quarter century and trashing the Mobile decision in the process.
The same dynamic played out once again in 2006. Although President Bush initially displayed some ambivalence toward Voting Rights Act renewal, and some members of his Justice Department advocated scrapping preclearance, legislative opposition to the renewal never got too far off the ground.
As Edward Blum, a wealthy anti-civil rights activist who would go on to be the driving force behind the Supreme Court case that gutted preclearance in 2013, complained in a 2006 National Review article, “Republicans don’t want to be branded as hostile to minorities, especially just months from an election.”
The 2006 Voting Rights Act reauthorization passed both houses by overwhelming margins. It was signed into law by Bush.
It’s not hard to imagine the frustration conservative Republicans must have felt each time the act was renewed. Those Republicans elected sympathetic presidents, and they had every reason to believe that those presidents and Republican lawmakers would hear their concerns. And yet, in each case, a Republican president sided with liberals over their own conservative supporters.
Justice Antonin Scalia gave voice to this frustration during oral arguments in Shelby County v. Holder (2013), the Roberts Court case that quashed preclearance. The Voting Rights Act, Scalia claimed, was a “perpetuation of racial entitlement,” and “whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.”
“I don’t think there is anything to be gained by any Senator to vote against continuation of this act,” Scalia continued. “And I am fairly confident it will be reenacted in perpetuity unless — unless a court can say it does not comport with the Constitution.”
Scalia had just turned 76 when his Court heard Shelby County, and he’d watched his fellow Republicans bow over and over again to liberals. That, in Scalia’s mind, was a failure of democracy. His side had won the presidency and, in some cases, control of Congress. And yet the victor did not collect the spoils.
And so the Supreme Court’s Republican majority stepped up to cure this perceived injustice. Chief Justice Roberts led the charge.
Why race is still at the heart of American voter suppression
Roberts’s majority opinion in Shelby County posits that the United States simply isn’t racist enough to justify a fully operational Voting Rights Act.
Preclearance — requiring states to get federal permission before changing their own voting laws — was an “extraordinary” measure adopted to “address an extraordinary problem,” Roberts claimed. Yet, nearly a half-century after the Voting Rights Act first became law, “the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.” Black voter turnout “has come to exceed white voter turnout in five of the six States originally covered by” Section 5, Roberts claimed.
Preclearance worked. So there was no longer any need for it.
There are a number of fairly obvious criticisms of this argument. One of the most famous was raised by Justice Ruth Bader Ginsburg in her dissenting opinion: “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.”
Another problem is that nothing in the Constitution suggests that the Supreme Court gets to decide whether the United States is racist enough to justify extraordinary measures to halt that racism. To the contrary, the Fifteenth Amendment provides that the right to vote “shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude,” and it gives Congress the “power to enforce this article by appropriate legislation.”
Maybe Roberts was right that our nation had made enough racial progress to ease off of preclearance. But Congress disagreed with him. And the Constitution’s text suggests that Congress has the final word.
But there’s also good reason to doubt that America has made quite as much racial progress as Roberts claims. The chief justice is correct that Southern states no longer engage in wholesale disenfranchisement of nearly all African Americans. But a subtler and more insidious form of racism still pervades our elections.
Almost immediately after the Supreme Court decided Shelby County — which, among other things, allowed North Carolina to enact new voting laws without federal supervision — North Carolina’s GOP-controlled legislature began work on an omnibus bill that combined several provisions making it harder to cast a ballot. Indeed, the Republican chair of the state Senate’s rules committee declared that “we’ll have an omnibus bill coming out” just one day after the Supreme Court’s decision.
The state’s new election law, in the words of a federal appeals court that struck it down, targeted “African Americans with almost surgical precision.”
Before enacting the law, the appeals court explained, state lawmakers “requested data on the use, by race, of a number of voting practices.” It then used the data to help ensure that the law would be especially likely to discourage Black voters from casting a ballot, while simultaneously having a smaller impact on whites.
The North Carolina law, for example, did not simply require voters to show photo ID at the polls. According to the appeals court, it only permitted voters to use “those types of photo ID disproportionately held by whites and excluded those disproportionately held by African Americans.” As one expert witness testified, several forms of ID that could not be used to vote under the North Carolina law — including government employee IDs, public assistance IDs, and student IDs — “provide relatively greater access to IDs for African Americans.”
Similarly, the law eliminated the first seven days of early voting; data shows that African Americans were especially likely to vote in those days. And it eliminated one of the two Sunday voting days when Black churches often held “souls-to-the-polls” events where parishioners are bused to early voting sites.
The partisan benefits of such moves were clear. As the appeals court explained, “restriction of voting mechanisms and procedures that most heavily affect African Americans will predictably redound to the benefit of one political party and to the disadvantage of the other.”
In the 2016 election, according to CNN exit polls, 89 percent of African Americans chose Democrat Hillary Clinton over Trump. And, in a closely divided state like North Carolina, if even a small percentage of Black voters are disenfranchised, it could harm Democrats’ chances of winning statewide elections.
As it happens, Roberts and his conservative colleagues on the Court voted to reinstate the North Carolina law that the appeals courts struck down — but they didn’t have a majority because of Scalia’s death. In the 2016 elections, Democrat Roy Cooper won an exceedingly narrow victory in the gubernatorial race over then-incumbent Gov. Pat McCrory (R).
Roberts’s crusade against the Voting Rights Act is ongoing
North Carolina is just the tip of a much larger iceberg. Roberts and his fellow Republican justices have already taken bold steps to undercut American voting rights. And they are likely to do much more.
In the wake of Shelby County, which largely neutralized Section 5 of the VRA, Section 2 is now the primary legal obstacle standing in the way of racial voter suppression.
Section 2 allows voting rights plaintiffs to prevail in two ways. They can either prove that an election law was enacted with racist intent, or they can show that it results in people of color being denied their right to vote. Lawyers sometimes refer to these two prongs of Section 2 as the “intent” test and the “results” test.
In one of his many memos opposing the results test, the young John Roberts argued that prohibiting laws that merely have the effect of disenfranchising voters is unnecessary because voting rights plaintiffs can fairly easily prove that racist laws were enacted with invidious intent.
“The Supreme Court has made clear that intent in this area … may be proved by both direct and circumstantial evidence,” the young Roberts wrote. Voting rights plaintiffs, he continued, “can rely on the historical background of official actions, departures from normal practice, and other indirect evidence in proving intent.”
And yet, as chief justice, Roberts joined the Supreme Court’s decision in Abbott v. Perez (2018), which held that lawmakers enjoy such a strong presumption of racial innocence that the likely effect of this decision will be that few, if any, Section 2 plaintiffs will be able to overcome this presumption.
Perez arose after Texas’s Republican state legislature drew racially gerrymandered legislative maps in 2011. Those maps never took effect, in large part due to a federal court decision determining that they violated the Voting Rights Act.
As a stopgap measure for the 2012 election, a different federal court drew interim maps that the state could use for that election only. Many of the districts in these hastily drawn interim maps closely resembled the racially gerrymandered districts drawn by the Texas legislature in 2011 — though the court emphasized that “this interim map is not a final ruling on the merits of any claims” that some parts of the map were illegal racial gerrymanders.
Nevertheless, in 2013, the Texas legislature ratified these interim maps as its own — including the districts that were still being challenged as racial gerrymanders. Perez upheld the state legislature’s decision to reenact these racially gerrymandered districts in 2013 almost in its entirety.
Under Perez, courts must apply a strong presumption that lawmakers did not act with racist intent. “Whenever a challenger claims that a state law was enacted with discriminatory intent,” Justice Samuel Alito wrote for the Court’s Republican majority, “the burden of proof lies with the challenger, not the State.”
In light of this presumption, Perez concluded, Texas’s racist maps were almost entirely safe from challenge. “The only direct evidence brought to our attention suggests that the 2013 Legislature’s intent was legitimate,” Alito wrote in Perez. “It wanted to bring the litigation about the State’s districting plans to an end as expeditiously as possible.” The 2013 legislature wasn’t motivated by racism, according to Perez, it was motivated by a desire to quash a lawsuit alleging racism. And that was sufficient reason to uphold racially gerrymandered maps.
It should go without saying that future Section 2 plaintiffs will struggle to prove racist intent, given the heavy burden they carry under Perez.
That means that the results test — the same results test that the young Roberts tried to kill — is now the last best defense against racist election laws. And it is far from clear that this results test will survive much longer.
As chief justice, Roberts has shown broad skepticism against civil rights laws prohibiting practices that have a disparate impact on racial minorities — laws such as Section 2’s results test.
In 2015, for example, Roberts voted to eliminate a federal ban on housing discrimination that has a disparate impact on people of color. But Roberts wound up joining a dissenting opinion in that 2015 case because Justice Anthony Kennedy, a relatively moderate conservative who retired in 2018, voted with the liberal justices to preserve the fair housing law. Now, however, Kennedy is gone. And his replacement, Justice Brett Kavanaugh, is, if anything, even more hostile to voting rights than Chief Justice Roberts.
It is likely, in other words, that Roberts finally has the majority he needs to strike down the results test. The Voting Rights Act — the most important and most effective shield against racist election laws — may soon be an empty husk. And even if Democrats dominate the 2020 elections and enact new voting rights legislation next year, that legislation will still need to survive contact with the Roberts Court.
Roberts’s attacks on voting rights go well beyond race
Race and voting rights, for the reasons explained above, are fundamentally connected. Even as America moves beyond the explicit white supremacy that defined the Jim Crow era, we remain racially polarized. Because voters of color — and especially African Americans — are so likely to prefer Democrats to Republicans, race allows the GOP to identify which voters it should target if it wants to give itself an unfair electoral advantage. This is why Shelby County is such a naïve opinion.
But not every voting rights issue is a racial issue. And here, as well, Roberts has shown little respect for voting rights.
As I write these words, one of the most pressing challenges facing American democracy is the Covid-19 pandemic. Elections are often a time of gathering, when voters come together at the polls to wait in line to cast their ballot. But any such gathering is potentially a public health threat during a pandemic. Worse, states have historically depended on older, retired individuals to staff the polls — but those individuals are likely to stay at home because they are particularly at risk from the coronavirus.
Early in the pandemic, a wide array of election experts advised Americans to cast their ballots by mail to reduce this strain on polling sites. But the post office, led by postmaster general and Trump megadonor Louis DeJoy, has decommissioned mail-sorting machines and ordered postal workers to work less. Trump has openly bragged that he’s resisting additional funding for the Postal Service to stop “universal mail-in voting.”
It is far from clear, in other words, that the United States has the personnel and physical infrastructure necessary to run an election during a pandemic.
And yet, in the midst of a crisis that could raise profound questions about the legitimacy of the upcoming election, Roberts has largely instructed the courts to do nothing.
Last April, for example, many Wisconsin voters faced a choice between disenfranchisement and risking their health to go to the polls because the state was unable to process absentee ballot requests fast enough to ensure that everyone could cast their ballot by mail. To help ensure that ballots were not tossed out due to these unavoidable delays, a federal district court ordered the state to count ballots that arrived a few days after the official election date.
But the Court’s Republican majority, in an unsigned opinion joined by Roberts, held that many of these ballots must be trashed after all. The crux of the Court’s decision in Republican National Committee v. Democratic National Committee (2020) is that it is more important to prevent courts from altering “the election rules on the eve of an election” than it is to ensure that every vote is counted. And this rule apparently applies even if a sudden, unanticipated crisis risks disenfranchising thousands of voters. (It’s worth noting that the Court’s opinion does not appear to have flipped the results in Republicans’ favor in the Wisconsin election.)
Similarly, in Texas, state law permits voters over the age of 65 to obtain an absentee ballot, but it forbids most younger voters from voting by mail. Although this law is hard to square with the Constitution — the 26th Amendment provides that “the right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age” — Texas’s Republican attorney general has fought hard to defend it in court.
And yet, in July, the Supreme Court indicated that it wouldn’t even consider an age discrimination challenge to this unconstitutional law until far too late to impact the November election. Texas voters under the age of 65 will just have to find some other way to vote.
If there is one thread woven throughout Roberts’s voting rights decisions, it’s the idea that the courts should be deferential to state and local officials. Occasionally, that leads him to rule in favor of voting rights. In Republican National Committee v. Common Cause Rhode Island (2020), for example, Roberts appeared to reject the Republican Party’s attempt to make it harder to cast absentee ballots in Rhode Island because all of Rhode Island’s top election officials disagreed with the GOP’s position.
But it should be obvious that voting rights violations are far less likely to occur in states where all the relevant public officials agree that voting rights should be protected. Taken too seriously, deference to state and local officials means deferring to the worst actors. Jim Crow could only exist because federal officials — and federal courts — deferred to the judgment of white supremacist state and local officials.
Fifty-five years after the Voting Rights Act drove a stake into the heart of Jim Crow, the right to vote faces its greatest challenges since President Lyndon Johnson signed this landmark act. We are marching into a presidential election with our voting rights laws in tatters, and with a sitting president who is actively working to prevent his opponent’s supporters from casting a ballot.
This moment of profound peril for American democracy is, in many ways, Roberts’s doing. He’s worked his entire career to undermine voting rights. Whatever happens in the 2020 election, we cannot rely on the Roberts Court to protect those rights.
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