Georgia's Primary and the State of Voting Rights

By Jeffrey Toobin, The New Yorker

12 June 20

favorite parlor game in some circles is to name the worst Supreme Court decision of all time. From the nineteenth century, Dred Scott v. Sandford, from 1857, is hard to beat, because it decreed that African-Americans could not be full citizens, and helped precipitate the Civil War. From the twentieth century, Korematsu v. United States, which, in 1944, upheld the forced removal of Japanese-Americans from the West Coast, often figures as a strong runner-up. But it’s increasingly apparent that there is a modern contestant for this baleful roll call: Chief Justice John Roberts’s opinion in Shelby County v. Holder, from 2013.

In Shelby County, the Court’s five Republican appointees declared unconstitutional the core of the Voting Rights Act of 1965, the most consequential civil-rights law in modern American history. (The four Democratic appointees dissented.) The act, and its subsequent reauthorizations, designated certain areas, mostly the states of the old Confederacy, for special scrutiny of their voting-rights practices. If these states wanted to make any changes with regard to elections—from redrawing the boundary lines for legislative districts to determining the location of polling places—they had to obtain “pre-clearance” from the Department of Justice. (The states could also go to court for pre-clearance.)

For decades, the pre-clearance process operated as an effective check on discrimination in voting rights. But Roberts’s opinion asserted that times had changed since 1965: as he put it, “the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.” As a result, the Court effectively ended pre-clearance, giving the states previously under scrutiny free rein to change their voting practices without first obtaining approval from the federal government. In practice, the Shelby County decision has been a disaster for voting rights, especially for the voting rights of African-Americans.

This was once again made clear in the shambolic primary election that Georgia held on Tuesday. It was always going to be difficult to conduct elections in the midst of the coronavirus pandemic, but Georgia’s effort was an emphatic failure—with long lines, faulty voting machines—especially in poorer, minority areas. (My colleague Charles Bethea has some of the grim details here.) Georgia was a covered jurisdiction under the Voting Rights Act at the time of the Court’s opinion, and if the Justices had not neutered the law the state would have been required to clear its plans for the primary.

The Shelby County decision has done more than just allow occasional misfires. It has hastened perhaps the most sinister aspect of the contemporary political agenda of the Republican Party. In every state and locality under its control, the G.O.P. is trying to limit the ability of Democrats, especially people of color and lower-income people, to vote. This has often taken the form of demanding photo identification to vote (to address the largely imaginary problem of voter fraud), limiting early and absentee voting, and closing polling places in certain neighborhoods. These trends predated the Shelby County decision, but the Justices’ green light spurred vote-suppression efforts literally overnight. According to the Brennan Center, within twenty-four hours of the Shelby County ruling, in 2013, Texas announced that it would implement a strict photo-I.D. law. Two other states, Mississippi and Alabama, also began to enforce photo-I.D. laws that had previously been barred under federal pre-clearance. As the Brennan Center further noted, these Republican efforts to disenfranchise African-Americans have intensified in recent years.

The majority in Shelby County made sure that those with the worst of intentions—that this, officials who want to manipulate the electoral system to achieve their desired outcomes—have almost unlimited power to do so. The demands of conducting elections in the wake of a pandemic seem certain to make a bad situation worse. The only hope for a fair election in November will rest with people at the local level, who will have to do their best to fight for what the Voting Rights Act once delivered.