Congressional Democrats seem to have realized that the main opposition to voting rights is the U.S. Supreme Court.
Yes, Republican state legislators are returning us to the early Jim Crow era in overt voter suppression. Unfortunately, however, the Supreme Court is facilitating those efforts.
Objecting to the country’s direction in seemingly moving toward racial and social progress, conservatives and right-wingers hit upon the idea of using the Supreme Court to reverse this trend. So, through the years, by hook or crook—and mostly crook—Republicans created the Court they wanted.
Senate Republicans, led by Senator Mitch McConnell, blocked many federal judge nominees by President Obama. Thus Trump appointed almost as many in his four years as Obama did in eight years. And Republicans refused to let Obama nominate a second Supreme Court justice—as was his right. So, Trump appointed three of the six right-wingers currently on the Court.
Trump worked closely with Majority Leader Mitch McConnell and other Senate Republicans to make the federal judiciary more conservative– particularly the appeals courts.
In 2013, led by the nimble Chief Justice Roberts, a longtime opponent of the Voting Rights Act (VRA), the Supreme Court opened the floodgates for voter suppression by gutting the VRA with the abolition of “preclearance.”
Now Congressional Democrats have gotten serious. Led by Representative Terri Sewell of Alabama, they are trying to overturn the attacks by the Court on American democracy by passing—in the House–the John R. Lewis Voting Rights Advancement Act (H.R. 4).
Primarily H.R. 4 overturns the Supreme Court’s recent attacks on voting rights by giving the Justice Department and federal courts authority to block voter suppression laws.
First, H.R. 4 restores the preclearance provision of the VRA. Preclearance required states and jurisdictions with a history of racist election practices to submit new election rules for federal approval before those rules could take effect.
One writer says H.R. 4 restores preclearance on steroids. It provides for automatic updating of the formula for preclearance. It would cover states with 15 or more voting rights violations in the previous 25 years, or just ten violations if the state itself committed at least one violation.
In 2020, many citizens filed lawsuits arguing that various voting restrictions were illegally burdensome, and the lower federal courts agreed. However, the Supreme Court conservatives repeatedly reversed these lower court rulings, reinstating the stringent voting restrictions amid the pandemic.
The Supreme Court claimed the Purcell decision in 2006 prohibited changing voting laws close to an election even if the statute or practice being challenged is burdensome on voters. Rulings based on this idea valued the state’s interest in enforcing election laws over citizens’ right to cast a ballot. H.R. 4 overturns that practice by requiring that preference be given to citizens’ right to vote.
The Voting Rights Act prohibits states from enacting an election law that denies the right to vote on account of race or color. Unfortunately, this year’s Brnovich decision, written by Justice Samuel Alito, provided several questionable results tests for this rule, thus enabling states to deny the right to vote.
H.R. 4 specifies factors to consider in such cases, including the history of official voting-related discrimination in the state and the extent to which minority group members bear the effects of discrimination in areas such as education, employment, and health.
The John R. Lewis Voting Rights Advancement Act is comprehensive as it includes other items not mentioned here. However, it is dead on arrival in the Senate if the Senate Democrats do not consider voting rights as so essential to democracy that the bill should pass or fail on a majority vote. This would mean a “carve-out” of the filibuster rule for voting rights.
Biden owes his presidency to minorities, especially African Americans, as he has readily admitted. Thus, it is morally and politically incumbent on him to ask the Senate Democrats to make that carve-out.
