A More Liberal Supreme Court? Not When It Comes to Voting Rights

For the fourth time since April, the Supreme Court this week made it harder for Americans to vote. The ruling, Justice Sonia Sotomayor wrote in dissent, was part of “a trend of condoning disfranchisement.”

The court’s rulings — in cases from Alabama, Florida, Texas and Wisconsin — provide a contrast to an image of the court that emerged at the end of the term that ended last week, one in which liberals achieved some significant victories. The recent run of election cases tell a different story.

“One might have thought that the crisis in voting created by the pandemic would have caused the justices to rise above their usual ideological and partisan divide on election questions,” said Richard L. Hasen, a law professor at the University of California, Irvine. “But there’s no sign of that on the horizon.”

The court’s voting-rights rulings were decided in haste, in reaction to emergency applications asking the justices to take quick action in pending appeals. The court did not hear arguments, and most of the orders it issued provided no reasoning. But the bottom line was uniform: The Supreme Court, which is dominated by five Republican appointees, sided with arguments pressed by Republicans to restrict voting rights in every case.

Edward B. Foley, a law professor at Ohio State, said that the rulings were worrisome, but also that a full picture had yet to emerge.

“I’m concerned that we are seeing an erosion of the court’s basic commitment to protecting the equality of voting rights — a commitment that stems from Warren Court precedents of the early 1960s, but I’m not yet overly alarmed,” he said, referring to Chief Justice Earl Warren. “We still need more data for a more complete assessment.”

Paul M. Smith, who teaches election law at Georgetown and represented formerly incarcerated people who sought to vote in Florida, said there may be multiple explanations for the recent rulings, including a general skepticism of federal intervention in the state administration of elections.

“You might hypothesize that this is all of a piece with the Republican Party’s policies of trying to shrink the electorate for political advantage,” he said. “And maybe that’s part of it. But the instinct to deregulate seems to extend beyond situations with a partisan valence.”

For his part, Chief Justice John G. Roberts Jr. has long been hostile to voting rights, according to Professor Hasen. “In his writings on the court,” he said, “Roberts has shown himself much more sympathetic to the political rights of donors than to the rights of voters.”

The chief justice wrote the majority opinion in Shelby County, Ala. v. Holder, the 2013 decision that by a 5-to-4 vote effectively struck down the heart of the Voting Rights Act of 1965. The court’s Republican appointees were in the majority, its Democratic ones in dissent.

That decision prompted many states controlled by Republicans to enact voter ID laws, roll back early voting and purge voter registration lists.

Chief Justice Roberts also wrote the majority opinion last year in Rucho v. Common Cause, a 5-to-4 ruling that barred challenges in federal court to partisan gerrymandering, the practice in which the party that controls a state legislature draws voting maps to help elect its candidates.

The court’s Republican appointees were again in the majority, its Democratic ones again in dissent. The main beneficiaries of the ruling, at least in the short term, were Republicans.

When he was a young lawyer in the Reagan administration, Chief Justice Roberts worked to oppose an expansion of the Voting Rights Act.

“Roberts lost that battle,” Professor Hasen said, and the expansion “has been one of the key factors explaining the success of minority-preferred candidates in congressional, state and local legislative elections. He opposed one of the most successful voting rights expansions in American history.”

The recent orders were all unsigned. In only two of them was it plain that the vote was 5 to 4. But it seemed clear that the court’s Republican appointees were in the majority in all of them.

The cases often turned on a seemingly neutral question, one that election law scholars call the Purcell principle, after a 2006 decision, Purcell v. Gonzalez, that said courts should not change the status quo too close to an election. But just what counts as the status quo is often contested.

In April, the majority relied on that principle to say that a federal judge in Wisconsin should not have extended the deadline for some absentee voting in light of the coronavirus pandemic. The vote was 5 to 4, and it split along the usual lines.

“Extending the date by which ballots may be cast by voters — not just received by the municipal clerks, but cast by voters — for an additional six days after the scheduled Election Day fundamentally alters the nature of the election,” the unsigned opinion said.

In dissent, Justice Ruth Bader Ginsburg wrote that “the court’s order, I fear, will result in massive disenfranchisement.”

She said the majority had put voters in Wisconsin to an unacceptable choice.

“Either they will have to brave the polls, endangering their own and others’ safety,” Justice Ginsburg wrote. “Or they will lose their right to vote, through no fault of their own. That is a matter of utmost importance — to the constitutional rights of Wisconsin’s citizens, the integrity of the state’s election process, and in this most extraordinary time, the health of the nation.”

There were no noted dissents last month when the court declined to reinstate a trial judge’s ruling that would have allowed all Texas voters — not just those who are 65 or older — to submit their ballots by mail given the health crisis.

The challengers relied on the 26th Amendment, which lowered the voting age to 18 and said the right to vote “shall not be denied or abridged by the United States or by any state on account of age.”

Justice Sotomayor issued a statement saying that the question in the case raised “weighty but seemingly novel questions regarding the 26th Amendment.”

But she said the court was right not to address those questions in the context of an emergency application. “I hope,” she wrote, “that the Court of Appeals will consider the merits of the legal issues in this case well in advance of the November election.”

On July 2, the court blocked a trial judge’s order that would have made it easier for voters in three Alabama counties to use absentee ballots in this week’s primary runoff election in light of the pandemic. The vote was 5 to 4, with the court’s more conservative justices in the majority, but neither side gave reasons.

The Alabama case was notable, said Justin Levitt, a law professor at Loyola Law School in Los Angeles, because both the trial judge and the United States Court of Appeals for the 11th Circuit had ruled in favor of making it easier to vote.

“In Alabama,” Professor Levitt said, “the court specifically stuck its neck out to stop a lower court order that the 11th Circuit declined to pause.”

“The court ruled without any explanation at all, affecting the upcoming election without any public rationale,” he said. “Just ‘because.’ That’s not law: That’s just an exercise of power.”

On Thursday, the court allowed Florida to bar people with felony convictions from voting unless they have paid court fines and fees. It left in place the 11th Circuit’s stay of a trial judge’s ruling that Florida’s voting restrictions were unconstitutional.

The court’s order in the Florida case drew a dissent from Justice Sotomayor, joined by Justices Ginsburg and Elena Kagan. (If Justice Stephen G. Breyer dissented, he did not say so.)

“This court’s order,” Justice Sotomayor wrote, “prevents thousands of otherwise eligible voters from participating in Florida’s primary election simply because they are poor.”

Here again, Professor Hasen said, “the majority did not explain its reasoning.”

“But the vote reveals,” he said, “that a court majority was not bothered by the potential for the 11th Circuit to run out the clock, thereby preventing potentially hundreds of thousands of re-enfranchised voters from casting their ballots in November.”