The competing efforts by Democrats in Congress to protect voters’ rights and by Republicans there and in nearly all state legislatures around the country, including here in Minnesota, to restrict them overlook the vital role played by the Supreme Court in disenfranchisement of portions of the electorate.
Three rulings by that tribunal have been crucial in limiting voter participation. They include the decision in 2008 in Crawford v. Marion County Election Board allowing voter photo identification laws, a matter defeated by the electorate in Minnesota nearly a decade ago but now resurfacing in the GOP agenda here; the ruling five years later in Shelby County v. Holder that emasculated the Voters Rights Act; and the refusal to examine politically motivated gerrymandering in the 2019 case of Gill v. Whitford.
This trio of terrible rulings has impeded large segments of the public, mainly those leaning Democratic, from meaningful participation in elections and is at the root of why Republicans attain disproportionate representation in state and federal legislative bodies to their actual popularity among voters.
The threesome also reflects that it is the Supreme Court that has been the suppressor-in-chief of voting rights in recent years. While not cast in partisan terms, the rulings have had a discernible impact on the political composition of legislative bodies — from local units of government to the halls of Congress, maybe even extending to the White House. It is ironic that Justice Steven Breyer, one of the judges who dissented in all three of them, warned earlier this month against enlarging the Supreme Court or other prospective judicial reforms because doing so would politicize the judiciary.
That train has long ago left the station.
How to (somewhat) neutralize nominations
While political considerations cannot be removed from the High Court, they can be somewhat neutralized. One way would be to have federal judges nominated by a bipartisan — or, better yet, nonpartisan — commission, subject to confirmation by the Senate, which currently fulfills that function for presidential nominees.
Doing so would require a constitutional amendment, but that may be achievable by appealing to adherents of both parties and the unaligned as well.
Another less permanent but more practical approach would be for presidents to establish such commissions and agree to nominate one of the multiple, say three to five, individuals recommended by that body, a process modeled after arrangements in place here in Minnesota and a number of other states and even used by some senators like Minnesota’s Sen. Amy Klobuchar in recommending to the president federal trial court jurists in their respective states.
These alternatives show that there are ways to minimize politics from permeating the judiciary, especially at its highest echelon. But, absent some changes in the composition of the Supreme Court, voter suppression laws enacted by the states may be sanctioned by the highest court in the land.
Marshall H. Tanick is a constitutional law attorney and historian.
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