Roberts court’s ‘stench’ began when it undermined Voting Rights Act and America’s democracy diplomacy

Supreme Court Justice Sonia Sotomayor wondered during oral arguments Dec. 1 on Mississippi’s anti-abortion legislation whether the Supreme Court as an institution could survive the “stench” from overturning 50 years of precedent of its Roe v. Wade decision. Sotomayor is correct to worry about public perception of the court’s decisions, but the Roberts court’s stench became noticeable with its 2013 decision in Shelby County v. Holder, in which Chief Justice John Roberts wrote the majority opinion.

Shelby County, which is in Alabama, sought to overturn Section 5 of the Voting Rights Act (VRA), which was originally enacted in 1965 and which Congress had extended for 25 years in 2006.

Section 5 required that nine, mostly Southern, states (including Alabama) and parts of seven other states in various sections of the country preclear with the U.S. Department of Justice (DOJ) any proposed change in voting requirements or practices. The preclearance requirement stemmed from those states’ and jurisdictions’ histories of voter discrimination, and it required them to demonstrate that their proposed changes did not have a racially discriminatory intent or effect.  From 1970 to 2000, the DOJ, under Section 5, objected to nearly 1,000 changes proposed by covered jurisdictions. The DOJ blocked 31 proposed changes in 2006, the year the VRA was extended.

The VRA’s 2006 extension was remarkably bipartisan: After 21 hearings, which produced 15,000 pages of evidence, the House approved the VRA by a vote of 390–22 and the Senate by 98–0. Congress, pursuant to careful public examination of the practices of the jurisdictions most affected by the VRA and hearing arguments from all sides, decided to sustain all operative parts of the VRA, including the requirement for preclearance. In short, Congress found that while some progress had been made, not enough had changed since 1965 to warrant either substantially modifying or not renewing the VRA.

Roberts and four other justices disagreed.

Writing for the majority, Roberts several times asserted that “things have changed dramatically” since the VRA was first enacted. Roberts went on to argue that the changed circumstances, which Congress had specifically not found, meant that the time had come to end a remedy that strained the normal constitutional order. In her dissent, Justice Ruth Bader Ginsburg characterized the majority’s opinion ending preclearance as being like “throwing away an umbrella in the middle of a rainstorm because you are not getting wet.”

Events would prove Ginsburg right and Roberts wrong.

The day the Shelby County ruling was made public, Texas announced it would implement a strict voter photo ID requirement the DOJ had previously blocked. North Carolina promptly followed suit, enacting a photo ID requirement as well as reducing the window for voter registration and cutting back on early voting. Alabama and Mississippi similarly moved after the Shelby decision to enact voting restrictions of their own. Such behavior continued up to and beyond the 2020 elections.

The Roberts court’s evisceration of Section 5 meant that states and jurisdictions could enact and implement voting restrictions until they were sued and a court made them stop, which could take several election cycles. Such suits did occur — and were occasionally successful — but they were expensive and took time.

As if to cement the process of neutering the VRA, the Roberts court at the end of its 2020 term made it more difficult to challenge voting restrictions post facto. Its decision in Brnovich v. Democratic National Committee said that Section 2 of the VRA, which banned nationally racial discrimination in voting, applied only to intentional discrimination, not to acts that have the effect of disadvantaging racial groups, a standard that will be difficult to meet, intentions being much harder to prove than effects.

The Roberts court’s “stench” comes from decisions that have eroded the principle on which our constitutional republic was founded, i.e., the people are the ultimate sovereigns in America, and they exercise that sovereignty through voting, initially by voting to ratify the Constitution. Examples of such Roberts court decisions include Shelby and Brnovich as well as Citizens United v. FEC (2010), which reversed long-standing campaign finance restrictions.

The Founding Fathers clearly did not mean the Constitution to allow either efforts to produce desired electoral outcomes by restricting access to the ballot or those with financial resources to dominate the electoral space, but that is where the Roberts court has put us.

What the Roberts court has done in undermining voting rights is principally a domestic concern, but it also matters diplomatically.

Our constitutional order is the foundation of America’s domestic tranquility and prosperity, which is the basis of our strength abroad. 

Additionally, an intangible source of American power rests on the heretofore widespread respect and admiration of our democratic institutions and practices, particularly free and fair elections.

The efforts of a sitting president to overturn the 2020 election and subsequent actions by Republican-led states to restrict future voting, which the Roberts court’s decisions make easier to do and harder to challenge, have had the effect abroad of making the America system of governance look less special — and they undermine decades of U.S. diplomacy to promote democracy.

Democracy diplomacy matters, which is why Republican and Democratic administrations have pursued it and why President Biden hosted a virtual democracy summit last week. But the eroding of the fundamentals of American popular sovereignty hurts America in its global competition with Xi Jinping’s China and Vladimir Putin’s Russia and in dealing with the autocratic drift in parts of Europe and elsewhere. It matters even more at home.

The “greatest generation,” which is now passing from the scene, had to fight abroad in WWII to protect that constitutional order; now, current generations need to fight at home — through local, state and national elections — to protect our constitutional order and safeguard the rights won when Americans ratified the Constitution in 1788 and established the world’s first constitutional republic.

Kenneth C. Brill is a retired career Foreign Service Officer who served as an ambassador in the Clinton and Bush Administrations and was the founding Director of the U.S. National Counterproliferation Center within the Office of the Director of National Intelligence.