By Sneha Sharma
Sneha is a junior in the School of Arts and Sciences at the University of Pennsylvania majoring in Politics, Philosophy, & Economics and minoring in Healthcare Management and Engineering Entrepreneurship.
Since the nomination of Judge Amy Coney Barrett to the Supreme Court, there have been murmurs of worry that the final nail will be hammered in the coffin of what is left of the Voting Rights Act of 1965.
The jurisdiction surrounding the right to vote is one of the most, if not the most, significant Supreme Court decisions. The Supreme Court held in Yick Wo v. Hopkins in 1886 that voting is “fundamental” to the American system of self-government. The Constitution addresses voting in Article II and four subsequent amendments (the 15th, forbidding discrimination in voting on the basis "of race, color, or previous condition of servitude;" the 19th, forbidding discrimination in voting based on sex; the 24th, prohibiting "any poll tax" on a person before they can vote; and the 26th, granting the right to vote to all citizens over the age of 18).
As election season approaches, a recent spate of decisions by Conservative judges in the the two biggest states in the country — such as the Fifth circuit decision to deny absentee ballots to those under 65 in TX, and the Eleventh circuit decision by Judge Pryor in FL to keep poll tax on ex-felons — are indirectly denying voting rights to thousands that could make all the difference between winning and losing. In Wisconsin, the US Court of Appeals for the Seventh Circuit ruling set new limits to early voting. Conservative Judge Frank Easterbrook claimed that “legislators are entitled to consider politics when changing the rules about voting.” Election law expert Rick Hasen called it radical interpretation, “The Supreme Court has never held that partisan animus provides a legitimate basis for discriminatory voting rules.”
As the New York Times reported on September 25, even the Supreme Court has not given a comprehensive account of itself either.
"In two other cases this year, Federal District Court judges in Alabama and Texas made it easier for voters to cast absentee ballots in the light of the pandemic. In both instances, the Supreme Court, 5-4, with the five Republican-appointed justices in the majority, stopped the district courts from doing this."
In the 1980's, John Roberts worked as a law clerk for William Rehnquist, one of the most conservative Supreme Court justices, and voiced opposition to Congress shoring up VRA. In 2000, Justice Roberts and Barrett, along with Justice Brett Cavanaugh, were on the Bush legal team during the election imbroglio that resulted in the Supreme Court deciding in favor of Republican nominee Bush. As president, Bush returned the favor by selecting Roberts to fill the seat vacated by Rehnquist and become Chief Justice.
Since then, the dismantling of section 4(b) of VRA in Shelby County v. Holder (2013) and the decisions regarding gerrymandering, voter-id laws, mail-in-ballots, have cast a doubt on the integrity and impartiality of the highest court in the land. In 2018, the Supreme Court upheld Ohio’s voter purge law Husted v. A. Philip Randolph Institute that allowed the state to remove voters from the rolls if they did not vote in three consecutive federal elections and did not respond to a mailed postcard, creating a precedent for other states to adopt a similar voter elimination system.
So, the pressing question for political and legal scholars remains how to ensure that democracy- as flawed as the US is (2019 EIU rankings had the US at 25) - doesn’t become victim to partisan battles in the courts. Politically appointed judges will always find thinnest legal precedence or create new strict legal interpretations to justify their decisions, but public opinion will ultimately decide if courts keep their legitimacy or are viewed as partisan hacks.
With a potential 6-3 conservative majority on the Supreme Court, it is likely that VRA will see further weakening and any new legislation to re-strengthen is likely to be met with a SCOTUS stonewall. When a state legislature can pass bills to override the opinions of the majority - 64 percent of Florida voters approved a historic ballot initiative, Amendment 4, restoring voting rights to people who’d been stripped of them due to felony convictions - and courts approve, then how do we as a nation justify that our democracy is stable? Both sides in a polarized political climate will vehemently defend their positions, but the status-quo and naked voter suppression attempts cannot go unchecked. It is important that the three branches of government continue to function independently to serve the citizens in the system of checks-and-balances. If not, the downward slide of democracy will largely rest at the feet of the judiciary which appears to act as an extension of one political party.
Congress is not powerless and can do more to re-balance the legal structure in a way that is more representative of the population. Article III, section 1 of US Constitution states, “ The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” Some scholars question if Congress should pass reforms so that lower courts are no longer able to hear lawsuits challenging the VRA. This suggestion arises from the concern that small-scale reform efforts are likely to face a hostile judiciary at both federal and lower courts. For example, Elizabeth Branch of the Eleventh Circuit, contrary to decades of precedent, even argued that people and organizations could not sue to enforce the Voting Rights Act.
Congress trying to limit the authority of the Supreme Court to hear voting rights and election related cases may result in constitutional crisis, but can a basis be found for Congress to limit the jurisdiction of federal judges? If all efforts to re-balance the judiciary are stymied, there will be a growing chorus among progressive voices to expand the judiciary.
Some have suggested that a new court should be created that handles voting rights and democracy issues and can be benched by neutral judges, or equal numbers of judges from all major parties. Politics shouldn’t be involved in the decisions regarding voting rights because if a system is broken, then it stands that citizens cannot rely on the very same system to fix it. Ultimately, the rhetoric of voting will shine throughout the 2020 election, making it interesting to see where dialogue about disenfranchisement goes after the votes are tallied in November.
The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.
Photo by Unseen Histories on Unsplash