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OPINION

The Supreme Court’s starring role in democracy’s demise

With democracy hanging in the balance in 2020, the Supreme Court is clearly playing a decisive and destructive role. Unfortunately, we’ve been here before.

Voters observed social distancing guidelines as they waited in line to cast ballots in the Wisconsin presidential primary election, in Milwaukee in April.
Voters observed social distancing guidelines as they waited in line to cast ballots in the Wisconsin presidential primary election, in Milwaukee in April.Morry Gash/Associated Press

Just as the US Supreme Court pretended Jim Crow had nothing to do with the laws that disfranchised Black Americans, the justices have now ignored the impact of COVID-19 on Black Americans’ voting rights. As before, the court is playing a starring role in democracy’s demise.

In a series of recent decisions imperiling voters’ access to the ballot box, the Supreme Court acted as if COVID-19 barely existed and the laws Republicans passed for absentee ballots were actually about election security and not outright disfranchisement. The first instance was the stunning decision in April that forced Wisconsin voters, in the middle of a pandemic, to make a Hobson’s choice between the right to vote or their own safety. In an unsigned decision by the five conservative justices, COVID-19 was barely mentioned, only that the tens of thousands of requested absentee ballots, which had not yet even arrived in the homes of voters by that night, still had to be postmarked by the next day to count. The result was that many in Wisconsin stood in line, risked their health to vote, and paid the horrible price by contracting the virus.

The justices then followed that debacle with another decision that was even more macabre, because by then COVID-19 had claimed more than 130,000 lives in the United States. The Court decided to allow Texas and Alabama to ignore the contagion and keep in place witness signatures and ID requirements — which were, in effect, barriers to voting — for absentee ballots, although, for many, those requirements can be secured only by violating the social distancing measures necessary to keep the novel coronavirus at bay. Worse, because both access to the government-issued photo identification required to vote and COVID-19 disproportionately impact Black and Latino voters, the sanitized bureaucratic language of absentee ballot requirements amounts to nothing less than biological warfare on the right to vote for more than 25 percent of registered voters in Alabama and 43 percent in Texas.

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With democracy hanging in the balance in 2020, the Supreme Court is clearly playing a decisive and destructive role. Unfortunately, we’ve been here before.

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An installation at the new Legacy Museum, part of the National Memorial for Peace and Justice in Montgomery, Ala., April 20, 2018. Dedicated to the victims of American white supremacy, the site demands a reckoning with with the lynching of thousands of Black people in a decades-long campaign of racist terror.
An installation at the new Legacy Museum, part of the National Memorial for Peace and Justice in Montgomery, Ala., April 20, 2018. Dedicated to the victims of American white supremacy, the site demands a reckoning with with the lynching of thousands of Black people in a decades-long campaign of racist terror.NYT

A little over a generation after the Civil War, Mississippi state legislator James K. “Big Chief” Vardaman (1861-1930) beamed with joy. He boasted that his state’s 1890 Jim Crow constitution had been designed solely to eliminate Blacks from politics. The scheme worked. Before the new constitution took effect, more than 190,000 Black people were registered to vote in Mississippi; within two years, only 8,600 remained on the rolls, and most of them would soon vanish as well. Vardaman was equally proud that in the face of this damning evidence of racial purging, the Supreme Court, in a unanimous decision in Williams v. Mississippi (1898), argued that the state’s formidable barriers to the ballot box, such as the poll tax and the literacy test, did not violate the 15th Amendment, which laid out that the right to vote “shall not be denied or abridged … on account of race, color, or previous condition of servitude.”

The justices argued that because the poll tax and literacy test applied to everyone, not just Blacks, the fact that 90 percent of Black voters disappeared from the electorate had nothing to do with “race, color, or previous condition of servitude.” That was the trick that had brought such joy to Vardaman. The Potemkin village of race-neutral law had been painstakingly built to choose voting requirements based on Black Americans’ slavery-induced lack of access to wealth (the poll tax) and education (the literacy test). By making the legacies of slavery the determinants of voting rights rather than specifying blackness in particular, the Mississippi Plan of 1890 danced around the Constitution while trampling all over it.

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And this is what the Court had blessed.

As the Mississippi Plan spread throughout the old Confederacy, the result was devastating to American democracy. While more than 130,000 Black Americans were registered to vote in Louisiana in 1896, less than a decade later that number had nosedived to only 1,342. Similarly, Alabama went from 180,000 registered Black voters to fewer than 3,000. The same attrition was happening in Texas, Georgia, South Carolina, Virginia, and North Carolina.

The shredding of American citizens’ right to vote continued unabated for decades. Thus, by the time the United States prepared to go to war against the Nazis, only 3 percent of age-eligible Blacks were registered to vote in the South. During the presidency of John F. Kennedy, there were counties in Alabama, Georgia, and Mississippi that had zero to nearly zero percentage of Blacks on the voter rolls. As the electorate shrank and became more gnarled and disfigured, the remaining voters, sometimes with a turnout rate below 5 percent, selected the policy makers who ruled not only at the local and state levels but also dominated Congress and the shaping of federal law.

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That kind of debasement of American democracy could not have happened with just white supremacist politicians writing the laws. It required seven decades of court case after court case where the justices would knock down one method of overt voter suppression only to uphold another and provide explicit guidance on the constitutional way to tweak the law to legally block Black Americans from voting.

John Lewis, right, with fellow protesters at the Edmund Pettus Bridge during the 1965 march from Selma to Montgomery, Ala., in "John Lewis: Good Trouble."
John Lewis, right, with fellow protesters at the Edmund Pettus Bridge during the 1965 march from Selma to Montgomery, Ala., in "John Lewis: Good Trouble."Tom Lankford/Tom Lankford, Birmingham News/Ma

It took a mass civil rights movement, the cataclysm on the Edmund Pettus Bridge in Selma, and the Voting Rights Act of 1965 to stop the bleeding in American democracy.

By the 21st century, though, the Supreme Court once again opened the wound. In 2008, the justices ruled, in a 6-3 decision, that although Indiana had not offered up even one case of voter impersonation fraud, the state’s voter ID law was constitutional because it applied to everyone. Just as they had done when 90 percent of Black voters vanished from the rolls in Mississippi, the Court ignored that, by design, whites in Indiana were 11.5 percent more likely to have the required credential to vote than Black Americans.

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That willful refusal to grapple with the racism inherent in silencing Black people’s political voice was more than apparent in the Supreme Court’s 2013 Shelby County v. Holder decision, which handcuffed the federal government’s ability to protect the right to vote. To make that happen, five justices had to overlook more than 700 attempts by states since 1982 to implement racially discriminatory voting laws. They also had to ignore that the very case before them reeked of racial discrimination. Without the required approval of the Department of Justice, Shelby County Alabama commissioners annexed and redrew district boundaries, until the map compelled the lone Black councilman to run for reelection in a newly configured district where more than 75 percent had voted against Barack Obama. Instead of dealing with Shelby County’s willful disregard of federal law and the racism embedded in that contempt, Chief Justice John Roberts penned a rose-colored 5-4 decision about an America where virulent racism no longer existed and, therefore, no longer required the Voting Rights Act.

With a ruling in 2013 as untethered to reality as the one in 1898, voter suppression metastasized like a horrible cancer, weakening the very marrow of American democracy. Using the Mississippi Plan’s schema to deploy euphemisms for race to circumvent the 15th Amendment, states from Texas to Wisconsin crafted voting laws that preyed on the legacy of slavery and Jim Crow, such as 21st-century poverty, lack of transportation, and residential segregation, to then require notaries, government-issued photo IDs, postage, or even standing in line for hours during a pandemic to vote.

It will take another mass movement, another Voting Rights Act, and perhaps another constitutional amendment before the unequivocal right to vote is recognized in the United States. What it (and we) can’t take, however, is another seven decades of judicial tomfoolery to make that happen.

Carol Anderson is the Charles Howard Candler Professor of African American Studies at Emory University and the author of White Rage: The Unspoken Truth of Our Racial Divide and One Person, No Vote: How Voter Suppression is Destroying Our Democracy.”