I was once at a dinner party with a prominent jurist who was asked to name the worst Supreme Court decisions ever. Without hesitation, the judge ticked off three: Plessy v. Ferguson (1896), which gave the court’s blessing to the concept of “separate but equal” treatment between races; Bush v. Gore (2000), which stopped the recount of votes in Florida and anointed George W. Bush president; and Citizens United (2010), which gave corporations rights to unlimited campaign contributions.
The Plessy decision, at least, was overturned by the court in its Brown v. Board of Education ruling of 1954. But the other decisions all strike at the heart of American democracy: the integrity of our elections.
To this dismal list we must now add Shelby County v. Holder (2013), which ripped away federal protections of the 1965 Voting Rights Act, prompting the greatest wave of voter suppression laws in half a century. It’s urgent that Congress pass the John Lewis Voting Rights Advancement Act, named for the late civil rights leader, which restores and updates the formula under which jurisdictions with a history of voter discrimination need federal clearance to adopt new restrictions. Anything less returns the country to a shameful past — a nation of poll taxes and literacy tests that mocks the very idea of government “by the people.”
The corrosive effects of the Shelby decision were swift: Within 24 hours, Texas announced that a stringent voter ID law that previously had been blocked under the Voting Rights Act would immediately take effect. Since then, other states have shortened voting hours, shut polling places, purged eligible voters from the rolls, and curtailed registration.
This year alone, 19 states — all with Republican-controlled legislatures — have enacted laws making it more difficult to vote. But this is a tale of two countries: Twenty-five other states controlled by Democrats have passed laws expanding voting rights. It’s a sorry state when our increasingly bitter polarization distorts even this most universal right.
When the Voting Rights Act was last reauthorized, in 2006, it had broad bipartisan support, including a unanimous vote in the Senate. Now Senate Republicans won’t even bring up the John Lewis Act for debate, even though a majority of Senators — including lone Republican Lisa Murkowski of Alaska — support it. The reason is the modern-day filibuster, a legislative tactic rooted in racism, which requires 60 votes to bring an issue to a vote. Congress needs to reform the filibuster. It’s just wrong that our democracy should be held hostage by a procedural rule that is a relic of the Jim Crow era.
It’s hard not to conclude that Republicans were alarmed at the surge of voter participation in 2020. Turnout was a healthy 67 percent, an increase of 7 percent, or 24 million voters, over 2016. Spurred by the high-stakes presidential election, and eased by pandemic-related reforms such as expanded early voting, Americans exercised the franchise in record numbers. Republicans have clearly concluded that, for them, the best turnout is low turnout.
With voters denied a full, fair chance to voice their displeasure at the polls, elected officials can — and do — simply ignore the will of the people. It’s no coincidence that the odious antiabortion law in Texas went into effect within days of sweeping new voter restrictions in that state. A large majority of Texans don’t agree the voting restrictions are needed, and they disliked much about the abortion law. “Our public policy has ceased to reflect what the majority want,’’ said Mimi Marziani, president of the Texas Civil Rights Project, in a recent discussion hosted by Harvard’s Ash Center for Democratic Governance. “This is what you see in countries that have slipped out of democracy.”
Too ominous? Consider: Last month an international watchdog organization added the United States to a list of “backsliding democracies” for the first time. The United States joined Poland, Hungary, Brazil, and India in a rogues’ gallery of countries where voter suppression, extreme polarization, distrust in institutions, and election-related violence is badly eroding democratic norms.
In its Shelby decision, the court explicitly invited Congress to revisit the Voting Rights Act because conditions in the covered jurisdictions had changed over 50 years. “We issue no holding on [a section of the law] itself,” the court wrote, “only the coverage formula.” That is just what the John Lewis Act would address. Alarm bells are ringing. Anyone who loves America needs to hear them.
Renée Loth’s column appears regularly in the Globe.