Repealing Democracy

The Supreme Court’s decision today sends a clear message to voters across the country: We will not protect your sacred right to vote. The laws at issue in Brnovich are part of a larger, coordinated assault on our democracy being carried out in the name of ‘election security,’ that is based on the decades long lie of widespread election fraud. The impact of this activist, ideologically-driven decision will be felt in the future and far outside the borders of Arizona. These laws, and others like them, are unnecessary, and they will result in the effective disenfranchisement of countless American citizens – especially people of color.

Tellingly, this decision shows once again that this Court has little interest in protecting voting rights, and it makes the responsibility that is constitutionally supposed to be Congress’ all the more urgent. We are getting by with an electoral system on life support…  Eric Holder, Jr, the 82nd U.S. Attorney General on Brnovich vs DNC discussed below.

Strange when conservative justices claim to be “originalists” (those who stick to the “original” intent of the framers of the Constitution) a la the late Antonin Scalia, when they dramatically ignore the plain words of the Constitution they claim they are preserving. Like the 2008 Supreme Court, Heller vs District of Columbia decision, where the words “well regulated militia” were rather dramatically ignored in Scalia’s stretching of the Second Amendment into a general interpretation of a fairly open public right to bear arms, even military assault weapons, without any reference to the volunteer militia that gave rise to this Revolutionary War consideration and somehow skipping over the 1789 reality of muskets and flintlocks. The number of gun homicides (especially mass shootings) since that ruling has exploded exponentially. The court has had a litany of outlandish opinions over the years including:

The 1857 Dred Scott vs Sanford ruling which held that even when a slave owner moved into an abolitionist state, the slave did not gain freedom… and such a slave could never have standing as person to seek a judicial determination of his or her status anyway. Four years later, the nation was gripped in a Civil War, which many believe was accelerated by this racist holding.

In 1896, the Court set the “separate but equal” rule in Plessy vs Ferguson, affirming the legitimacy of racial segregation as long as the segregated facilities were equal in quality. Of course, there never was any real enforcement of “equality.” Jim Crow laws were brutally enforced, and vigilante Ku Klux Klan members implemented torture and killing that prompted little in the way of successful criminal prosecutions.

It took cases like the 1954, Brown vs Board of Education to reverse that legal support for continued segregation, with federal intervention (including federalized National Guard troops) to force the issue. Integration was fiercely resisted by a bevy of Dixiecrat state officials. Federal legislation with the Civil Rights and Voting Rights acts of the mid-1960s, ratified and expanded over the decades, represented the next phase of “fixing” our democracy. 

Yet despite continued congressional ratification, an increasingly conservatively activist right-wing Supreme Court seemed hell-bent on usurping the legislative branch. As in its 2013 Holder vs Shelby County ruling, where the Court repealed (word very purposely chosen) provisions of the Voting Rights Act that mandated federal supervision of those states that had clearly created voting restrictions aimed at reinforcing mainstream white votes while marginalizing and suppressing votes of minorities of color. Those identified states immediately reimposed another such litany of voter suppression statutes. More on this issue below.

In what would be the basis for a criminal corruption prosecution in most other democracies, allowing the rich unlimited right to dominate public media with virtually no restriction (other than not giving candidates direct control), under the guise of “free speech,” is perfectly legal under the 2010 Supreme Court decision, Citizens United vs FEC, which accelerated and then sealed the unyielding polarization that defines our nation today. Extremists, once unelectable and unacceptable fringe candidates, were attracting extremist dollars under a pledge never to compromise. The money produced the desired results. Democracy seemed to be open to the highest bidder. But with such extremists now in Congress, the ability to thwart more liberal Supreme Court nominees and appoint litmus test conservatives throughout the judiciary, effectively metamorphized the Supreme Court into a right-wing legislature. Back to the voter suppression issue with the Court’s latest rulings.

Section 2 of the Voting Rights Act remained notwithstanding Shelby County. While the specific states with a history of voter suppression were released from federal supervision from that ruling, Section 2 remained and still seemed to ban voting restrictions with a discriminatory intent. On July 1st, at the close of its current term, divided purely on political lines (6-3), the Supreme Court effectively repealed Section 2 by creating such a high standard of proof of intent to discriminate that even the sloppiest draftsperson of a discriminatory statute with the most exclusionary intent could create a statute that would sustain under judicial scrutiny. The white traditionalist conservative constituency – now a distinct minority – cheered.

As those in Congress committed to maximizing voting in this country looked on, the filibuster rule in the Senate – the only such rule among democratic nations – made fixing this anomaly impossible. Indeed, even as 50% of the US Senate was elected by 30% of the people of the United States (remember, populous California and sparsely populated Wyoming have exactly the same number of US Senators: two), even as the majority of Americans still believed in the mythology of “one person, one vote,” voter suppression had now been legitimized by the highest court in the land… from which there was no appeal. 

In Brnovich, Attorney General of Arizona vs Democratic National Committee (2021), Justice Samuel Alito wrote the majority opinion, stating that two specific provisions of recently enacted Arizona voting restrictions do violate that Section 2 and do not result in an a denial of abridgment to vote by reason of race or color: 1. a ban on “ballot harvesting,” prevents third parties from collecting and turning in early voter ballots, unless they are family, household members, mail carriers, election officials or caregivers and  2. a new requirement in effect in counties that use a precinct system, mandating election officials to discard ballots that are cast outside the voter’s assigned precinct on Election Day.

The July 1st Journal of the American Bar Association notes: “The decision makes it much harder to challenge discriminatory voting laws in court, according to a statement by Sean Morales-Doyle, acting director of the Voting Rights and Elections Program at the Brennan Center for Justice at the New York University School of Law… ‘The justices stopped short of eviscerating the Voting Rights Act, but nevertheless did significant damage to this vital civil rights law and to the freedom to vote,’ Morales-Doyle said.

“Writing at the Election Law Blog, Rick Hasen, a professor at the University of California at Irvine School of Law, said the decision ‘severely weakened’ Section 2… ‘Rather than focus on disparate impact—whether a law leads to minority voters registering or voting in lower numbers—the court applies a much broader totality of the circumstances test with a huge thumb on the scale favoring the state and its restrictive law,’ Hasen wrote… ‘This is not a death blow for Section 2 claims, but it will make it much, much harder for such challenges to succeed,’ Hasen added.

“The opinion comes days after the U.S. Department of Justice filed a Section 2 lawsuit challenging new voting procedures in Georgia.” And if that decision did not redefine the Court’s hostility to free, open and transparent elections, a companion ruling on the same day effectively keeps “dark campaign money” dark. In Americans for Prosperity vs Bonta, Attorney General for California, the U.S. Supreme Court ruled 6-3 that California's donor disclosure requirement violates the First Amendment.

“The high court struck down a policy of the California attorney general’s office that requires nonprofits to disclose names and addresses of major donors… The disclosure requirement ‘imposes a widespread burden on donors’ associational rights,’ Chief Justice John G. Roberts Jr. wrote in the majority opinion… ‘When it comes to the freedom of association, the protections of the First Amendment are triggered not only by actual restrictions on an individual’s ability to join with others to further shared goals,’ Roberts wrote. ‘The risk of a chilling effect on association is enough.’

“Writing at his Election Law Blog, Rick Hasen, a professor at the University of California at Irvine School of Law, said the decision will make it harder to uphold campaign disclosure rules.” ABA Journal. Whatever else is said and done, the United States can no longer claim to be a fully representational democracy. We did this to ourselves, and it just may be part of the “great unraveling” of the United States as a sustainable nation.

I’m Peter Dekom, and I am deeply ashamed at the clearly growing antidemocratic movement across our land.