For all its prestige, the U.S. Supreme Court has issued some highly questionable rulings in recent years. Its 2010 decision that corporations are people still leaves many citizens scratching their heads. Comedian Jon Stewart made more sense when he noted wryly that corporations can’t be people since they have an “inability to love”.
Nevertheless, the Court’s 5-4 ruling to personify corporations remains the law of the land.
It is another ruling, however, that best demonstrates how naïve the Justices can be about the America that exists outside their chambers. In 2013, the Court struck down a critical provision of the Voting Rights Act, the law Congress enacted in 1965 to prevent states from racial discrimination in their election rules.
President Lyndon Johnson and Congress approved the Act two years after Martin Luther King’s “I Have a Dream” speech and one year after Congress passed the Civil Rights Act. Several southern states were still actively engaged in racial discrimination by levying poll taxes and requiring literacy tests. But what drew the nation’s full attention was violence, including murder, against volunteers who helped register African Americans and other minority voters. Congress noted that there was entrenched racial discrimination in state voting rules and called them “an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution”.
The Act required several states with an especially bad history of racial discrimination to obtain approval by the Attorney General of the United States for any changes they wanted to make in their voting laws. But by declaring part of the Act unconstitutional in 2013, the Supreme Court made this requirement unenforceable.
Writing for the majority, Chief Justice John Roberts reasoned that in the half-century since passage of the Act “things have changed dramatically” in the South. While no one doubts that voting discrimination still exists, Roberts explained, more African Americans than white Americans were voting in several of the states covered by the law and the racial gap in voter registration had narrowed. Speaking for the Court’s minority, Justice Ruth Bader Ginsburg warned that previous types of discrimination had merely been replaced by more subtle methods such as gerrymandering.
So, who was correct? Is the racially motivated rigging of voting rights a thing of the past? Or is the right to vote still being sabotaged by some of our states? Consider the following data from the Brennan Center for Justice, one of America’s most respected watchdogs on voting rights:
As of last May, at least 99 bills in 31 states had been introduced to restrict access to registration and voting.
Five states – Iowa, Arkansas, North Dakota, Indiana and Georgia ― had enacted bills to make it harder for citizens to vote. Three additional states enacted voting restrictions during the 2015-2016 period.
Bills to make it harder to register had been introduced in 23 states as of last May.
Most of the states that have passed or are trying to pass new voting restrictions are doing so in ways that courts previously prohibited.
Voter suppression strikes at the heart of democracy, but it has taken on partisan political dimensions. Traditionally, African Americans have tended to vote for Democrats. Thus, rules designed to deny racial minorities their voting rights increase the chances that Republicans will win elections. Along with other threats to the integrity of democracy — among them partisan gerrymandering and the corrupting influence of money in politics — voter suppression has weakened the two-party system and the checks and balances established by the Constitution. Republicans now control all three branches of the federal government; they control both the legislatures and governorships in 26 states.
In several states, the evidence shows that incumbent Republicans are actively engaged in trying to tilt elections in their party’s favor. In Ohio, for example, Republican Secretary of State and gubernatorial candidate Jon Husted reportedly has “purged” more than 2 million voters from the state’s roles since 2011. Purge notices are sent to residents who have moved or who have not cast a ballot for two years. If the residents don’t respond, they are categorized as “inactive.” Mother Jones reports that in Ohio’s three largest counties, voters in Democratic-leaning areas have been purged twice as often as people in Republican-leaning areas.
In Wisconsin, whose legislature passed a strict voter ID law in 2011, Mother Jones found that black voters were roughly 50 percent more likely than whites to be blocked from voting because they didn’t have the required identification. Blacks were less likely to drive and to have drivers’ licenses, and they were less likely to have other required documents, especially when they had moved to Wisconsin from other states.
After conducting a survey of registered voters in Wisconsin, political scientists Kenneth Mayer of the University of Wisconsin-Madison concluded, “we have hard evidence there were tens of thousands of people who were unable to vote because of the voter ID law.” That was more than enough votes to change the outcome of the presidential vote in Wisconsin last November.
There is some good news. The Brennan Center says more than 530 bills had been introduced in 45 state legislatures to expand voting access. Some state laws to suppress voters have been challenged in lawsuits that are now before the U.S. Supreme Court.
But the larger question goes back to the Roberts ruling. Has racial discrimination largely disappeared from the right to vote and for that matter, from society at large? The bad news appears to outweigh the good. Since last fall’s election, white supremacists and neo-Nazis have come out of the shadows to march openly in our streets. There are clear racial dimensions to the controversy over statues honoring leaders of the confederacy. Black Lives Matter has been interpreted as a racial rather than humanitarian movement. There are disturbing racial undertones, too, in Donald Trump’s presidency including his methodical attempt to destroy the legacies of the nation’s first Black president; his hesitance to condemn white supremacists for the violence that killed a woman in Charlottesville, Virginia; his attempts to restrict travel into the U.S. by certain religious and ethnic groups; his cancellation of DACA, the program that allowed nearly 800,000 undocumented immigrants to stay in America because they had been brought into the country as children; and his plan to build a wall to keep illegal Mexican immigrants out, an idea that has less to do with effective border control than with Trump’s appeal to those who object to immigration of virtually any kind.
In 2015, several members of Congress, led by civil rights icon Rep. John Lewis of Georgia, introduced legislation to repair the Voting Rights Act by requiring that all states obtain federal approval before creating laws that make it more difficult to register and vote or that gerrymander congressional and legislative districts. The bill did not pass, but its sponsors hoped it might at least inspire a grassroots movement among Americans who believe that all citizens regardless of race, religion, political affiliation or place of residence should have an equal opportunity to participate in elections.
To a degree, that is coming to pass. Scores of organizations in the United States, some old and some new, are working quietly to fix our broken democracy. At Oberlin College in Ohio last week, some of the nation’s leading thinkers about democracy and its challenges kicked off a series of five conferences that will be held in different cities to diagnose and fix what is broken. The organizations need more resources, but even if they obtain them, their work will not be enough. The revival of America’s democracy must become a nonpartisan national crusade to restore and protect the right to vote. The objective should be the suppression of voter suppression in next year’s midterm elections, in the 2020 presidential election, and beyond.
For its part, the Roberts Court may want to revisit its decision to weaken the Voting Rights Act. We would all like to believe that racial discrimination has mostly disappeared over the last 50 years. Unfortunately, the evidence proves otherwise.