As Republican-controlled states have tried to change election laws to make it easier to steal future elections for their party, it’s been hard for non-experts like me to figure out when the Supreme Court, now with a solid majority of justices appointed by Republican presidents, is engaging in partisan jurisprudence. The Supreme rulings have received mixed reviews from experts and scholars.
But one highly respected election law expert loudly cried foul in a piece just published by Slate headlined “The Supreme Court’s Latest Voting Rights Opinion Is Even Worse Than It Seems.”
It’s written by Richard Hasen, who teaches law and political science at the University of California at Irvine, and whose expertise I have respected since years ago when I often relied upon him in covering the epic Minnesota recount of the Al Franken-Norm Coleman election contest in 2008.
According to Hasen, the six-member Supreme Court majority consisting of all justices appointed by Republican presidents and written by Justice Samuel Alito, “turned back the clock on voting rights to 1982 …”
The ruling, in a case titled Brnovich v. Democratic National Committee, “reopens the door to a United States in which states can put up roadblocks to minority voting and engage in voter suppression with few legal consequences once a state has raised tenuous and unsupported concerns about the risk of voter fraud,” Hasen wrote. It’s “exactly the opposite of what Congress intended” when it passed the 1982 Voting Rights Act, which the court purports to apply in the case, he said.
Please read Hasen’s full Slate piece, to which I’ll provide another link below. According to him, Congress in 1982 went out of its way to reinforce, over the objection of President Ronald Reagan (and Hasen noted, “the president’s point person on the issue, John Roberts, who now happens to be the chief justice of the Supreme Court) that anything that makes it harder for “members of a protected class” (meaning, in this context, voters of color) to participate in election was unacceptable.
As you know, Republican-controlled states have been rushing through election law changes that, without saying so explicitly, are designed to make it harder for African-American voters to participate.
When deciding whether to allow changes to voting laws and procedures, the 1982 changes in the Voting Rights Act, as Hasen wrote:
“made clear that plaintiffs challenging voting rules did not have to prove that a jurisdiction acted with an intent to discriminate against minority voters; it was enough to show that ‘the political processes leading to nomination or election in the State or political subdivision are not equally open to participation’ by members of a protected class ‘in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. …
“… The 1982 amendment to Section 2 created a broad statute in which Congress told courts to look at the ‘totality of the circumstance’ in deciding whether a law gave minority voters ‘less opportunity’ than white voters to participate and elect. Among the factors in the totality of the circumstances were the socioeconomic factors which could make minority voters face extra barriers to voting, and the tenuousness of the supposedly neutral justifications states could advance for passing restrictive voting rules.”
Hasen makes clear his view that many of the changes in voting rules and laws now being pushed through by Republicans in several states cannot be reconciled with the original law and the 1982 amendment.