Another blow to American democracy from the Supreme Court

The Supreme Court’s ruling in Alexander v. South Carolina NAACP put to rest any lingering doubts that its six-member conservative majority is committed to democratic principles. Time after time, and despite congressional legislation to the contrary, the court has gone out of its way to issue decisions that harm voters while advantaging state legislatures and corporations.

As Americans prepare for one of the most consequential elections in our history — with at least two Supreme Court nominations on the table for the next presidency — it’s vital to understand that the source of the structural imbalances in our electoral system isn’t Congress. It’s the conservatives on the court.

The Supreme Court’s assault on elections began in 2010, when a 5-4 conservative majority in Citizens United v. FEC essentially held that corporations have the same First Amendment speech rights as people, undermining over a century of legislation and precedent. While individuals can only donate $3,300 to any single candidate or campaign, corporations and the extremely wealthy can spend an unlimited amount of money “electioneering” on the airwaves and online, so long as they don’t coordinate directly with candidates. Since then, outside groups such as political action committees (PACs) have spent billions of dollars to influence the outcome of elections, while the influence of individual voters stagnates.

Three years later, the court in Shelby County v. Holder deactivated Section 5 of the Voting Rights Act. The VRA, passed in 1965, represented Congress’s pushback on states that had outmaneuvered the 15th Amendment’s post–Civil War prohibition on laws restricting ballot access based on race. To keep Black voters from the polls, certain states enacted arbitrary hurdles to voting — such as reciting the Declaration of Independence or counting the bubbles in a bar of soap. Section 5 required states with histories of imposing such barriers to run proposed changes in electoral rules by the Justice Department before they could take effect.

Section 5 was reauthorized multiple times by supermajorities in Congress, in recognition of its tremendous role in redressing racial discrimination in voting. Nonetheless, the court held that the statute’s formula for determining which states needed the DOJ’s approval to enact new voting laws — known as “preclearance” — was outdated and unconstitutionally infringed on states’ ability to regulate elections. The John R. Lewis Voting Rights Advancement Act of 2021 contained a revised formula that the Shelby County majority demanded, but Republicans blocked it in the Senate.

After Shelby County, voters turned to Section 2 of the VRA for relief from restrictive voting laws. Section 2 imposes a permanent nationwide ban on voting practices that discriminate on the basis of race, color or membership in a language minority group. After the Supreme Court in 1980 judicially added a requirement of discriminatory intent to Section 2, Congress amended the law to overrule the court, establishing a less rigid “totality of the circumstances” test for violations. Section 2 covers any qualification or prerequisite to voting, but has primarily been used for gerrymandering claims.

But the Section 2 strategy for challenging voting laws after Shelby County was met with antipathy. In 2021, in Brnovich v. DNC, Justice Samuel Alito wrote a 6-3 majority opinion that inserted a multi-factored, rigorous judicial standard into Section 2 as a prerequisite to filing suit, making it much harder for voters to secure relief from laws inhibiting ballot access.

In Alexander v. South Carolina NAACP, Black voters challenged South Carolina’s congressional redistricting map under the 14th Amendment’s Equal Protection Clause (rather than Section 2 of the VRA). Since the court’s 1993 decision Shaw v. Reno, racial gerrymandering — or carving up voting districts around race — has been unconstitutional. The South Carolina legislature moved nearly 200,000 people into or out of a certain district in order make it solidly Republican, and the map was challenged as an illegal racial gerrymander. After a nine-day trial, a three-judge federal district court agreed with the petitioners and struck down the map.

But the Supreme Court majority ruled that the challengers had not shown that the state legislature based its decision on race rather than politics. Justice Alito’s opinion bootstrapped a 2019 ruling in Rucho v. Common Cause into a kind of immunity from claims of partisan (or party-based) gerrymandering that happen to overlap with race. In Rucho, a 5-4 conservative majority decided that constitutional claims of partisan (versus racial) gerrymandering are “political questions” that cannot be heard in court. Allowing challengers to bring a lawsuit based on the racial effects of a redistricted map, Alito reasoned in Alexander, would “provide a convenient way for future litigants and lower courts to sidestep our holding in Rucho that partisan-gerrymandering claims are not justiciable in federal court.”

Black Americans tend to vote for Democratic Party candidates, so Alito’s conflating of politics and race could mark the end of successful challenges to racially gerrymandered maps. He explained: “a party challenging a map’s constitutionality must disentangle race and politics if it wishes to prove that the legislature was motivated by race as opposed to partisanship.” To make “disentanglement” harder, Alito gave state legislatures two gifts: first, courts must now presume that legislatures act in “good faith” when redistricting. (Alito even scolded the trial court for “accus[ing]” states of “offensive and demeaning conduct.”) Second, in addition to overcoming the new good faith presumption, challengers must now offer an alternative map as a precondition to bringing racial gerrymandering claims.

Alito and his compatriots are either operating on cynicism or living in a fantasy land, where the “victims” are those already in power and the perpetrators are regular people — voters who wish to participate in their democracy, but don’t have billions to spend on ads and lobbying, or who by virtue of their skin color have never enjoyed full access to the ballot box. For the justices to ignore reality, once again, is to disrespect democracy itself.

Kimberly Wehle is author of “How to Read the Constitution — and Why.” Her forthcoming book, “Pardon Power: How the Pardon System Works — and Why,” is out in September. Follow her @kimwehle.