Nothing New, But It Bears Repeating

From Maureen Dowd of The New York Times:

Ordinarily staid and silent Supreme Court justices have become whirling dervishes of late, spinning madly to rebut the idea that Americans are beginning to regard the court as a dangerous cabal of partisan hacks.

They need not fret and wring their hands. No one is beginning to think that.

Many of us have thought that for a long time.

Supremes are often Shakespeare fans, so of course they are familiar with the phrase “doth protest too much, methinks.”

The once august court’s approval ratings on fairness were already falling two decades ago. The bloom came off the robe in 2000, when the court threw the game on Bush v. Gore, voting 5 to 4 to stop the Florida recount and anoint a Republican president.

If we conjure an alternative-history look at America, consider all the things that the Supreme Court brought down on our heads by pre-emptively purloining that victory for George W. Bush: two interminable and inexplicable wars, costing so many lives and so many trillions; a descent into torture; the villainous Dick Cheney.

As some on Twitter noted, our 20 years of quicksand in Afghanistan was capped Friday with this headline: “Son of Afghanistan’s Former Defense Minister Buys $20.9 Million Beverly Hills Mansion.”

Al Gore, mocked as “Ozone Man” by Bush senior, certainly would have tried to head off the biblical floods and fires engulfing our country.

The right-wing justices may as well embrace their reputation for hackery. Because in this blockbuster year, when the conservative court begins debating abortion and the Second Amendment, one thing is certain: They are going to make rulings that will drive people crazy, rulings that will be out of sync with what most Americans believe.

So please, conservative cabal, don’t pretend you’re not doing this out of ideology.

And please, Justice Breyer, skedaddle. You’re playing a dangerous game. You need to get out of there because it looks as if the midterms are going to be bad, and if the Democrats lose the Senate majority, there’s no guarantee that Mitch McConnell will let any Biden nominee onto the court, even with two years left on the president’s term. Do you want the court to be 7 to 2?

Listen to those Democrats who are warning that staying would be irresponsible and egotistical. Don’t make the colossal mistake that Ruth Bader Ginsburg did, ignoring entreaties from top Democrats and hints from the Obama White House to leave in a timely way and hanging on so long that the worst possible outcome happened: That remarkable feminist’s seat went to the ferociously anti-abortion Lady Handmaid’s Tale . . . 

And please, America, can we have term limits? Justices should not be on the court for 30 years, or into their late 80s.

Chief Justice John Roberts, who did not want the court to be seen as too extreme, has lost control because there are five more rabid conservatives running over him.

D____ T____’s ability to get three conservatives [Correction: reactionaries] on the court, thanks to McConnell, will turn out to be the most consequential part of his miserable presidency. And the minority leader is about to get his reward in the form of a bunch of conservative rulings.

The beauty of it for McConnell is that the court is going to do his dirty work for him. Republicans don’t want to vote to roll back abortion rights because they know it’s not popular and they don’t want their fingerprints on it. They’d prefer the court do it.

Linda Greenhouse, who has a book coming out called “Justice on the Brink,” had a piece in The Times summing up why it is brutal for our democracy to have institutions so out of step with majority views in the country: “Three polls within the past month show that fewer than a third of Americans want to see the court overturn Roe v. Wade. Yet it appears that only a third of the justices can be counted on to preserve the right to abortion as defined by the court’s current precedents.” So unlucky women in red states are going back to back-alley days?

. . . Ignore the charade of the parade of justices protesting that they are pure and neutral. Nobody’s buying it. We all know it’s a disaster if the country’s going one way and the court’s going the other. . . . 

We Are at Their Mercy

There are six Republicans on the Supreme Court. Three of them were nominated by a president who encouraged his followers to overturn an election after he’d lost the popular vote for the second time. Two others were nominated by a president who lost the popular vote the first time he ran, but became president anyway because a 5-4 Republican majority on the Court ordered the vote counting in Florida to end. The sixth Republican was elevated to the Court after he lied to Congress about his sexual harassment of Anita Hill.

This week five of those Republicans demonstrated that they can find an excuse in what they call “the law” to do anything they want in service of their reactionary ideology.

From Charles Pierce of Esquire:

My generally unfocused red-eyed rage at what the Supreme Court did late Wednesday night cleared momentarily and I realized that, according to the 5-4 decision allowing the blatantly unconstitutional anti-choice Texas law to stand, a state can pass all kinds of blatantly unconstitutional laws as long as they leave the enforcement of those laws to bounty hunters.

This moment of clarity passed, quickly, and unfocused red-eyed rage reasserted itself. This was completely appropriate when directed at a corrupted Supreme Court majority which did what it wanted to do, legitimate precedents be damned, and through such preposterous playground illogic that William Blackstone should rise from his unquiet grave and smack all five of those hacks upside their watery heads with copies of his Commentaries. 

We all knew that Brett Kavanaugh and Amy Coney Barrett were bag-job nominations for the specific purpose of voting the way they did late Wednesday night, and we all knew that Neil Gorsuch and Sam Alito were just waiting in the weeds with Clarence Thomas.

But, at their moment of ultimate triumph, they at least could have tried a little harder. I mean, look at this mess.

To prevail in an application for a stay or an injunction, an applicant must carry the burden of making a “strong showing” that it is “likely to succeed on the merits,” that it will be “irreparably injured absent a stay,” that the balance of the equities favors it, and that a stay is consistent with the public interest. . . .

The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. [Note: I quoted a different part of the mess than Mr. Pierce did]

The Supreme Court of the United States is saying two things here: 1) that it really doesn’t understand the law it is being asked to adjudicate, and 2) that the Texas law, which depends upon a transparent scheme to dodge judicial review, is beyond the Supreme Court’s reach because its transparent scheme to dodge judicial review is so cleverly drawn. No wonder the five cowards in the majority issued their order unsigned. I wouldn’t want my name attached to this pile of offal, either.

Justices Sonia Sotomayor and Elena Kagan were not so reticent, and they clearly can see a church by daylight. From Sotomayor:

The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand…Because the Court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent…In effect, the Texas Legislature has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.

The Legislature fashioned this scheme because federal constitutional challenges to state laws ordinarily are brought against state officers who are in charge of enforcing. By prohibiting state officers from enforcing the Act directly and relying instead on citizen bounty hunters, the Legislature sought to make it more complicated for federal courts to enjoin the Act on a statewide basis.

Today, the Court finally tells the Nation that it declined to act because, in short, the State’s gambit worked. The structure of the State’s scheme, the Court reasons, raises “complex and novel antecedent procedural questions” that counsel against granting the application, just as the State intended. This is untenable. It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.

For her part, Kagan expanded her anathemas to include the Court’s continuing abuse of its “shadow docket,” of which this order is the apotheosis.

Today’s ruling illustrates just how far the Court’s “shadow-docket” decisions may depart from the usual principles of appellate process. . . . It has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion—that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail. In all these ways, the majority’s decision is emblematic of too much of this Court’s shadow-docket decision-making—which every day becomes more unreasoned, inconsistent, and impossible to defend.

(It is notable that [Republican] Chief Justice John Roberts joined the minority in dissent. This further reinforces my belief that the only issues on which Roberts is reliably implacable are restricting the franchise and enhancing the corporate power of the oligarchy. That’s why Citizens United is his defining decision. For Roberts, that was a two-fer.)

Expand the Court. Do it tomorrow. Jesus Christ, a 5-4 majority just ruled that a cheap legal three-card monte game at the heart of a law was too clever for the Constitution to address.

Questioning the Power of Five Unelected Judges

It’s human nature to be pleased when decisions go our way and upset when they don’t. This certainly applies to decisions made by the Supreme Court. But there is a basic issue of democracy vs. aristocracy when it comes to the Court’s ability to invalidate or undermine laws passed by elected officials.

A Harvard law professor, Nikolas Bowie, submitted this testimony to the Presidential Commission on the Supreme Court of the United States that Biden created earlier this year. Reprinted in The New York Times, its title was “How the Supreme Court Dominates Our Democracy: Judicial Review Gives Any Five Justices Power Over the Whole Government. Why?”:

The United States calls itself the world’s oldest democracy, which would be true if the world began in 1965. That was the year John Lewis marched to the Edmund Pettus Bridge, the president said “We shall overcome” and Congress passed the Voting Rights Act, which allowed many citizens to exercise their right to vote for the first time.

Yet the legislation of 1965 wasn’t Congress’s first attempt to build a multiracial democracy. A century earlier, lawmakers enacted a half-dozen laws that protected the right to vote, punished political violence, and banned racial discrimination in public places. But as Frederick Douglass lamented in 1883, those laws were “grievously wounded” and cut down during his lifetime. Their assassin was the Supreme Court.

Striking down the first federal voting rights act, the court wrote “It would . . . be dangerous if the legislature could set a net large enough to catch all possible offenders”. Concerning a White mob that murdered more than 100 Black voters, the court stated that “it does not appear that it was their intent to interfere with any right granted or secured by the constitution”. In 1903, the court held that the federal government was powerless to stop “the great mass of the white population [that] intends to keep the blacks from voting.”

Because the Supreme Court undermined or ignored Congress’s attempts to enforce the Constitution, the racial caste system that we know as Jim Crow emerged like an invasive species. With the court’s approval, White people in the South terrorized Black voters, disenfranchised them and enacted state laws to codify their place at the bottom of a racial hierarchy.

Today, as American democracy enters a midlife crisis, the Supreme Court has often been heralded as democracy’s guardian. Decisions dating from 1954’s Brown v. Board of Education are seen by many as essential responses to the tyranny of the majority. Yet it appears that the court has reverted to its older ways.

In 2013, a justice sneered at Congress’s nearly unanimous reauthorization of the Voting Rights Act, calling it the “perpetuation of a racial entitlement.” He was soon joined by four of his colleagues in the Shelby County decision, which treated a central provision of the Voting Rights Act as beyond Congress’s power to enact “appropriate” legislation. And in its Brnovich decision this month, the court stuck a second dagger into the act, calling it too “radical” to be enforced as written.

In the wake of these decisions — as before — Jim Crow laws are reemerging. By declining to enforce federal laws because it disagrees with Congress about whether they’re constitutionally appropriate, the Supreme Court has functioned as an antidemocratic institution that produces antidemocratic results.

In his inaugural address in 1861, President Abraham Lincoln offered perhaps the best argument for why Congress, and not the Supreme Court, should have the final word on what the Constitution requires. The court had just held in its infamous Dred Scott decision that Congress had no power to restrict the spread of slavery. “The candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by the Supreme Court,” Lincoln said, “. . . the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” Lincoln thought that a self-governing people should have the power to determine what their fundamental law meant.

Lincoln’s argument wasn’t that the Constitution shouldn’t be enforced, but rather that Congress was the best institution to enforce it. Most of the Constitution’s limits are vague: The 15th Amendment permits Congress to enact “appropriate legislation” to protect the right to vote, for example, while the Fifth Amendment prohibits Congress from violating the “due process of law.” For as long as these limits have existed, there have been passionate disagreements about what they require. Congress offers a relatively democratic method for resolving these disputes. If people or state governments disagree about a law’s constitutionality, they can campaign to repeal that law.

By contrast, when the Supreme Court decides not to enforce a federal law, the justices in the majority effectively declare that their view is superior to everyone else’s. Even if the president, more than 500 members of Congress and four justices interpret the Constitution as permitting a law, if five justices disagree, then the law is not enforced. This was the scenario in 2013, when five members of the court held that a key section of the Voting Rights Act wasn’t “appropriate legislation.”

Yet no democratic procedure requires the justices to think of themselves as political equals with people who disagree with them. And while later generations of justices can revisit and overturn any of the court’s precedents, everyone else has the formal power to overrule the court only if two-thirds of both houses of Congress and three-quarters of the 50 states approve a constitutional amendment.

Indeed, it’s difficult to explain why, in a democracy, the constitutional interpretation of five justices should be superior to the constitutional interpretation of the elected officials who appointed and confirmed them.

One possible answer is that it’s the court’s job to interpret the Constitution. “It is emphatically the province and duty of the judicial department to say what the law is,” Chief Justice John Marshall wrote in his famous 1803 opinion in Marbury v. Madison. “The constitution controls any legislative act repugnant to it.” But Marshall’s emphatic response, as one critic put it, “begged the question-in-chief, which was not whether an act repugnant to the Constitution could stand, but who should be empowered to decide that the act is repugnant.”

A second possible answer is that everyone, the justices included, should follow their own interpretation of what the Constitution requires. But we all expect presidents, federal officials, state officials and even state judges to comply with federal law, regardless of whether they personally believe that the law is constitutional. As Lincoln well knew, it would be profoundly antidemocratic for a member of a state militia or the military to resist federal law. So the question — again — is what makes the justices different?

The only honest answer is that the justices are supposed to be antidemocratic. As Justice Robert Jackson wrote in 1943, “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” Other scholars have joined him in accepting the “counter-majoritarian difficulty” of judicial review. This perspective concedes that judicial review is antidemocratic — yet necessary for democracy to function properly.

This embrace of a judicial aristocracy affects much of the culture surrounding the Supreme Court. For the past hundred years, nearly every justice has been a graduate of an elite law school. New appointments are generally praised for their brilliance, credentials, professionalism and collegiality. And written briefs, adversarial argument, secretive deliberation, highly educated law clerks and a lack of political accountability are considered tools that allow the justices to resolve fraught questions correctly, even when their interpretations are politically unpopular.

But there is little historical reason to believe there is anything intrinsically correct about the Supreme Court’s constitutional interpretations. No expertise on the planet can determine whether Congress’s 1875 ban on racial discrimination, its 1965 expansion of voting rights, or its 2010 expansion of health insurance is “appropriate” or providing for the “general Welfare.” Resolving those questions requires the same trade-offs among competing principles that a democracy makes when it decides to enact any law. Our democracy suffers when an unelected group of lawyers take away our ability to govern ourselves.

This isn’t to say that Congress hasn’t adopted any horrific laws over the past 250 years. But there are few examples of the Supreme Court intervening in a timely fashion to overturn them. The court was silent at best when Congress violently captured fugitives from slavery, dispossessed Native American tribes, excluded Chinese immigrants, persecuted political dissidents, withheld civil rights from U.S. citizens in territories and interned Japanese Americans. Efforts to remedy these injustices have been achieved not by courts, but by expanding our democracy.

The history of judicial review of federal legislation shows that the principal “minority” most often protected by the court is the wealthy. Wealthy litigants can muster the skills, time, money, influence and capacity to challenge the same legislation over and over in court. For example, in 1895’s Pollock v. Farmers’ Loan and Trust Co., the Supreme Court invalidated a century of precedent to hold that a federal income tax would violate “one of the bulwarks of private rights and private property.” And in 2010’s Citizens United, the court threw out another century of federal campaign finance laws.

The best examples of judicial review working as expected by its proponents are cases such as the 2013 Windsor decision, which invalidated the Defense of Marriage Act of 1996, the 2008 Boumediene decision, which guaranteed minimal due process protections for Guantánamo detainees, and decisions in the 1970s that prohibited Congress from “protecting” women by engaging in sex discrimination. But when these cases are compared with rulings that directly contributed to the rise of Jim Crow, it becomes pretty evident that the court is, at best, no more reliable than Congress as a safeguard of political equality.

Of course, the Supreme Court has advanced democratic equality at the state level, from Brown v. Board in 1954 and Roe v. Wade in 1973 to Obergefell v. Hodges in 2015. But in these cases, federal judges didn’t disagree with Congress about the constitutionality of a federal law. To the contrary, they all enforced a federal law — the Ku Klux Klan Act of 1871. Congress enacted that law in response to Southern officials’ inaction against white supremacists terrorizing Black people. In its current form in the U.S. Code, the Klan Act instructs federal courts to invalidate state actions that violate the Constitution.

As the legal theorist James Bradley Thayer observed over a century ago, when the Supreme Court invalidates a state law, it is doing something far less objectionable than what it does when it refuses to enforce a federal law. In any federal system in which a national government disagrees with a state government, one side has to prevail. There is nothing undemocratic about our system in which the federal government decides who should win.

And when Congress instructs federal courts to preempt state laws — whether with the Klan Act or even with an ordinary federal law — the effect is as consistent with democracy as when President John F. Kennedy instructed federal troops to integrate the University of Mississippi. Either way, the federal government is simply seeking that its commands be enforced.

The situation profoundly changes when the Supreme Court goes rogue. For precisely the same reason that it can be democratic for federal troops to enforce Congress’s interpretation of the Constitution but extremely antidemocratic for them to disregard it, the proper role for federal courts in a democracy is to serve as its agents, not as a countervailing force. Democratic decision-making belongs in the hands of democratic bodies, not people with robes or guns.

Indeed, what a case like Brown actually illustrates is how federal legislation has successfully expanded American democracy when the Supreme Court serves as Congress’s enforcer. As the law professor Michael Klarman has observed, Southern schools remained almost as racially segregated in 1964 as they had been 10 years earlier, when Brown was decided. Formal segregation drew to a close in the South only after Congress enacted the Civil Rights Act and the Voting Rights Act.

Yet both laws stood in the face of Supreme Court precedents that restricted Congress’s power. Because the court continued to hold itself as the supreme interpreter of the Constitution, it had to give Congress permission to evade its own bad precedents . . .
Which returns to the original problem: Why should a court be in charge of a democracy? The answer is: It shouldn’t.

. . . Most of the time, the court gives Congress free rein to act as it pleases. But the justices are quick to pull on the reins when lawmakers move to disrupt hierarchies of wealth or status. Either way, the court arbitrarily dominates Congress: Even when the court is permissive, Congress can make no law without permission.

What makes that domination arbitrary is that the justices themselves are unbridled. Federal laws stand and fall on the votes of nine unaccountable lawyers, all appointed for life because of their educational backgrounds and relationship to the governing elite.

As a result, the political choices available to us as a democracy depend not on our collective will but on the will of people who hold power until they resign or die. This is precisely what the Declaration of Independence protested. As absurd as it was then for a continent to be perpetually governed by an island, it is equally absurd now for a nation of 300 million to be perpetually governed by five Harvard and Yale alumni.

As we debate new legislation to expand the franchise and protect the right to vote, the threat of judicial invalidation has forced our elected representatives to lower their expectations about how democratic our nation can become. In the name of protecting us from the excesses of democracy, the judicial review of federal laws is costing us democracy itself.

Voting Is War, Part 2

In their latest ruling, the Supreme Court’s six reactionaries ignored the law in order to help their party’s candidates get elected. Paul Waldman of The Washington Post discusses the latest case in which the Court’s liberals are reduced to writing a “blistering” dissent:

To no one’s surprise, the Supreme Court’s six conservatives [No, radical reactionaries] on Thursday ruled for Republicans in a pair of key voting rights matters, upholding two Arizona voter suppression laws. It’s part of the long-running partnership between Republicans in the states, Republicans in Congress and Republicans on the Supreme Court to make sure that the rules of American elections are twisted and contorted to give the GOP every possible advantage.

At issue was a section of the Voting Rights Act (VRA), which was once the crown jewel of U.S. voting law and a foundation of political equality, that has been gutted by a Supreme Court unremittingly hostile to voting rights.

And the justices aren’t done, not by a long shot.

One of Arizona’s laws makes it a crime for most people to deliver someone else’s absentee ballot, a heretofore common practice of particular importance to Native Americans in the state, who find it challenging to vote given their wide geographic dispersion and slow mail service (but also used regularly by organizers in Black and Latino communities). The other law says that if you vote in the wrong precinct, the state will throw out your entire ballot, even the votes for races where the precinct is irrelevant (e.g., president).

The laws were challenged as violating the VRA because they disproportionately affect minority voters. As the plaintiffs pointed out, minority voters in Arizona are about twice as likely to mistakenly vote in the wrong precinct for a variety of reasons.

Did the Republicans who put that law in place understand that? Oh, you bet they did.

Section 2 of the VRA says statutes are invalid if they have the effect of harming people’s ability to vote on the basis of their race, even if you can’t prove that the party that passed it was doing so with racist intent. Whether that section of the VRA has any meaning in the wake of this decision is an open question.

The decision, written by Justice Samuel A. Alito Jr., argued that the system in Arizona offers ample opportunity for everyone to vote, even if it seems to fall heavier on some people, and concluded that the state’s interest in preventing voter fraud outweighs whatever overall disparate impact the law has.

The fact that voter fraud is almost entirely fictional did not disturb the justice.

In a blistering dissent [starting on page 45 of this PDF], Justice Elena Kagan wrote that the majority had essentially invented its own reading of the VRA, and accused the majority of pretending not to know that such state laws are occurring in a context where efforts to suppress minority voters continue.

“No one would know this from reading the majority opinion,” Kagan remarked.

Kagan’s disgust is appropriate. This case is part of a long and ignominious campaign by the court’s conservatives to hollow out American democracy in any way they can, so long as doing so helps the Republican Party. For this court, no voting rights provision is too sacrosanct to strike down and no voter suppression law is too discriminatory to uphold. If next week Republican-controlled states brought back poll taxes and literacy tests, the court would probably find a reason to validate them.

In the past few years, this court has again and again taken a hammer to the rules meant to ensure free elections in which all Americans can participate on an equal footing. Let’s remind ourselves:

  • In 2010, the justices said corporations have the right to use their billions to influence elections.
  • In 2011, they struck down a public financing law meant to allow candidates relying on small donations to compete with self-financed millionaires and billionaires.
  • In 2013, they struck down the heart of the Voting Rights Act, claiming it was no longer necessary because racism is pretty much over.
  • In 2018, they upheld ruthless voter purges that disenfranchise thousands of voters.
  • In 2019, they ruled that partisan gerrymandering, no matter how clearly it disenfranchises people, is beyond the ability of the courts to do anything about.

The partisan commitment of this court is so clear that in oral arguments, the lawyer for the Arizona GOP comfortably declared that the party has standing to support the law throwing out ballots cast at the wrong precinct because counting such votes “puts us at a competitive disadvantage relative to Democrats.” He knew who he was talking to.

The big picture here is that the court’s conservatives operate according to the “heads we win, tails you lose” approach to voting rights, in which with only the occasional exception, the best predictor of how a voting rights case will turn out is which side the Republican Party is taking.

Pretty much the entire GOP is now committed to the idea that if elections were fair, they’d lose — so elections must not be allowed to be fair. That’s why they’ve been on a tear at the state level, passing dozens of laws making voting more cumbersome, inconvenient and difficult, all aimed directly at populations they believe are more likely to vote for Democrats.

Wherever those laws pass, they’re being challenged in court. But what’s going to happen when those challenges make their way to the Supreme Court, with its 6-to-3 conservative supermajority? The answer is all too clear.

It Would Be So Un-American If It Wasn’t So Historically Popular

The article’s subtitle is “Republican lies about voter fraud are giving way to naked grasping for power”. From Joyce Vance for MSNBC (links in the original):

We’re living in a time where one political party openly believes it’s more important to win elections than it is to let Americans choose their own representatives in free and fair elections. And whether they’re going to get away with it is shaping up to be one of the most important issues the country faces.

The Supreme Court isn’t a venue where you typically expect to hear the quiet part said out loud. But that was what happened Tuesday, when an attorney for the Arizona Republican Party, Michael Carvin, advised the court that provisions that made it easier for eligible Americans to vote put “us at a competitive disadvantage relative to Democrats.” He was implicitly characterizing laws that make voting more difficult for likely Democratic voters, often people of color, as the difference between winning and losing elections.

Carvin was, of course, not the first person to say out loud what has become increasingly obvious to anyone paying attention: Republicans’ support for laws that make it more difficult to vote has little to do with their boogeyman — voter fraud — and everything to do with winning elections despite the will of the voters.

The former president did the same when he told “Fox & Friends” last March that Covid-19 mitigation proposals that included provisions that made it easier for more people to vote safely would mean “you’d never have a Republican elected in this country again.”

Historically, restrictive voting measures have been justified as necessary to keep a shadowy group of people who are allegedly intent on casting fraudulent ballots from stealing elections. But those people never seem to materialize, and we’ve watched that narrative implode over the past few months as claims of fraud in the election were definitively rejected in over 60 lawsuits.

Similarly, after the 2016 election, [the winner of the Electoral College] established a so-called Election Integrity Commission to prove the existence of “widespread voter fraud.” It was forced to shut down just months into its work when it was unable to find evidence to substantiate that claim. Still, the fraud lie is routinely used to burden minority voting rights.

This happens despite the conclusion by the Brennan Center for Justice, based on the data, in December that “voter fraud is extraordinarily rare and our system has strong checks in place to protect the integrity of our voting process. These are the facts.”

It was in this landscape that the Supreme Court heard oral arguments Tuesday in Brnovich v. Democratic National Committee, in which Democrats sued Arizona under Section 2 of the Voting Rights Act. The plaintiffs argued that a policy that kept otherwise lawful ballots that had been cast in the wrong precincts from being counted, as well as a law that broadly restricted people from having other people turn in early ballots for them, amounted to unlawful voter suppression. The court seemed inclined to approve both of the Arizona provisions; the Court of Appeals had ruled that they unfairly burdened Black, Latino and Native American voters.

When the Supreme Court issues its ruling, what’s really at stake is whether its holding will affect more than just the Arizona provisions. Brnovich gives an increasingly conservative court the opportunity to adopt a standard of proof in Section 2 cases that would make it easier for Republican legislatures to enact policies that make it more difficult for people of color to vote, simply by claiming they are guarding against voter fraud. Brnovich might result in a strict test that would apply to future cases — like those that may need to be brought if some of the more than 250 bills Republicans have offered to restrict voting pass in their legislatures.

It’s clear that Republican operatives and legislatures have adopted voter suppression through restrictive legislation as a political strategy. Now that a lawyer has confirmed before the Supreme Court that it’s really just about winning elections, what’s a constitutional republic to do?

It’s probably too much to hope that the court will have a moment of righteous indignation. This is an even more conservative court than the one that gutted the Voting Rights Act in Shelby County v. Holder in 2013, when Justice Ruth Bader Ginsburg accused the majority of taking away the umbrella that protected us in the middle of the rainstorm because we were still dry while using it.

It seems like it would be easier to go out and compete for votes with attractive policies and ideas than to engage in complicated legislative shenanigans and expensive litigation, but some Republicans seem to be as afraid of voters as a kid headed home to his parents with a bad report card.

So the only real solution to protect the right to vote is for the Senate to pass the For the People Act, which the House cleared Wednesday night, and for both chambers to pass the John Lewis Voting Rights Act. Those laws would restore the protections of the Voting Rights Act and remove barriers that make it difficult for eligible people to register and vote. If passed, they would restore the mechanism to challenge unduly restrictive state practices.

Unless the Supreme Court does something unexpected, this is the only path forward.
Otherwise, next year and beyond, a party that controls its state’s legislature can impose rules that make it confusing and difficult for some people to vote. It can create an array of last-minute changes and restrictions that defeat your right to vote, for instance by changing your polling place and rejecting your ballot if, unaware, you go to the previous one.

While your choice of whom to vote for may be political, the right to vote itself isn’t. Instead, it’s a fundamental right that defines who we are as Americans. In part, the story of America has been about expanding groups of people who can exercise the franchise. We celebrated the 100th anniversary of women’s gaining the right to vote last year. Important parts of our history are about people who persisted in demanding the right to vote and the dignity that comes with it for Black people, including the Selma march and the use of dogs and fire hoses against protesting schoolchildren in Birmingham. If we become a country where the right to vote can be restricted through political machinations, then who are we?

People who are afraid of the results of elections in which everyone who is eligible to vote can vote are people who don’t believe they have a good case to make to the voters — people who think they’re going to lose because they haven’t governed well. In the words of the lawyer in the Brnovich case, “Politics is a zero-sum game, and every extra vote they get … hurts us.” But voting is about our rights, not about gamesmanship. Elections should be decided by the people, not by slick efforts to make it harder for some people to register or vote.