What Voting Rights?

THANK YOU, THANK YOU to all of you commenters who made my day yesterday, and restored my faith in at least some of “we the people.” I especially needed to know the extent of your civic and political engagement, because the Supreme Court is busily erecting barriers to the most direct–and most consequential– form of engagement: voting.

In a stinging dissent to the Court’s majority opinion upholding Arizona’s assaults on the right to vote, Justice Elena Kagan began:

If a single statute represents the best of America, it is the Voting Rights Act. It marries two great ideals: democracy and racial equality. And it dedicates our country to carrying them out. Section 2, the provision at issue here, guarantees that members of every racial group will have equal voting opportunities. Citizens of every race will have the same shot to participate in the political process and to elect representatives of their choice. They will all own our democracy together—no one more and no one less than any other. If a single statute reminds us of the worst of America, it is the Voting Rights Act. Because it was—and remains—so necessary. Because a century after the Civil War was fought, at the time of the Act’s passage, the promise of political equality remained a distant dream for African American citizens. Because States and localities continually “contriv[ed] new rules,” mostly neutral on their face but discriminatory in operation, to keep minority voters from the polls. South Carolina v. Katzenbach, 383 U. S. 301, 335 (1966). Because “Congress had reason to suppose” that States would “try similar maneuvers in the future”— “pour[ing] old poison into new bottles” to suppress minority votes. Ibid.; Reno v. Bossier Parish School Bd., 528 U. S. 320, 366 (2000) (Souter, J., concurring in part and dissenting in part). Because Congress has been proved right.

Kagan continues for some forty pages, ending with paragraphs that–ironically–demonstrate that the current “conservative” Court is doing precisely what Republicans always insisted the Court could not and should not do: legislating from the bench, and disregarding the clear meaning of a legal text.

But then, at least, the majority should treat the Voting Rights Act as if it were ordinary legislation. The Court always says that it must interpret a statute according to its text—that it has no warrant to override congressional choices. But the majority today flouts those choices with abandon. The language of Section 2 is as broad as broad can be. It applies to any policy that “results in” disparate voting opportunities for minority citizens. It prohibits, without any need to show bad motive, even facially neutral laws that make voting harder for members of one race than of another, given their differing life circumstances. That is the expansive statute Congress wrote, and that our prior decisions have recognized. But the majority today lessens the law—cuts Section 2 down to its own preferred size. The majority creates a set of extra-textual exceptions and considerations to sap the Act’s strength, and to save laws like Arizona’s. No matter what Congress wanted, the majority has other ideas. This Court has no right to remake Section 2. Maybe some think that vote suppression is a relic of history—and so the need for a potent Section 2 has come and gone. Cf. Shelby County, 570 U. S., at 547 (“[T]hings have changed dramatically”). But Congress gets to make that call. Because it has not done so, this Court’s duty is to apply the law as it is written. The law that confronted one of this country’s most enduring wrongs; pledged to give every American, of every race, an equal chance to participate in our democracy; and now stands as the crucial tool to achieve that goal. That law, of all laws, deserves the sweep and power Congress gave it. That law, of all laws, should not be diminished by this Court.

Read both the decision, authored by Samuel Alito (one of the most undistinguished jurists to sit on the high court) and the entire dissent by Kagan (one of the most powerful intellects to grace that same bench). 

And weep.

Happy Fourth of July…


  1. And, where are we regarding expanding the court?

    Or’, is the strategy to point at the big bad Republican Party and tell POC that Republicans don’t like them?

    What’s odd is there are a growing number of Black Republicans in my community and elsewhere who’ve been elected into office. Many have come from Christian churches as well, which I find even more interesting. They are joining the power structure which oppresses them. Think about that.

    I posted an article yesterday about the first black billionaire, the owner of BET, who wants his reparations from the “government” now for enslaving his people. Why is he going after the government when it was Oligarchs who bought and used slaves?

    Mobilize Muncie was formed as the reaction to the George Floyd murders. Its purpose was to address systemic racism. Unfortunately, when I pointed out the architects of systemic racism — the Ball Oligarchs, they deleted my post with the article I written with academic sources.

    The local blacks who call themselves the leaders, and the whites who’ve joined them in their cause, really don’t want to do an honest appraisal of their situation. They want to obtain acknowledgment for their wounds but don’t want to heal. So they embraced Juneteenth, which was nothing more than perfunctory performances by the Democratic Party.

    The large swath of apathetic whites that MLK talked about could care less, and maybe I’m reaching the same conclusion. If they don’t want to heal and move past their harms, then why bother. Get a state ID so you can vote—big deal. I’ve never been able to vote without showing my ID. If we ever heal the slave sin, what will the Democratic Party do?? 😉

    Lastly, this all goes to this very day that we celebrate annually as our Independence Day, where we no longer had to kneel before the British Monarchy and the Church of England. We were free!!

    Who was free? Exactly, who was free?

    We basically swapped masters, which is exactly my point with African Americans. They want the same freedom as white people enjoy(ed), yet the white people were only slightly freer. They allowed black suppression because it allowed them to feel superior, but they still were oppressed. The poor Southern whites felt this the most. As long as they had blacks to look down on, they didn’t have to look at their lot in life.

    Happy Freedom Day from British Rule!!

    Or, should we say, this day marks the passage of rule by British Monarchy to American Oligarchy? 😉

  2. Amendment XV protects Black Suffrage. Amendment XIX protects Women’s Suffrage. Both Amendments state in Section 2, “Congress has the power to enforce this article by appropriate legislation”.

    The power of Congress to ENFORCE Amendments has been somehow turned to their power to SUPPRESS voting rights of minorities who live in gerrymandered areas of all cities and states. Those gerrymandered areas are strictly maintained by economic levels of residents as Republicans, using Citizens United, move us closer to caste system determining the outcome of our elections at all levels.

    Majority rule has lost meaning in Congress as McConnell maintains his stronghold over the Senate with House Republicans trailing in his wake. His powers began during President Obama’s administration as he consistently REFUSED to uphold his own Oath of Office and the Constitution as a United States Senator by refusing to hold required hearings on federal court level judgeship nominees and Merrick Garland’s nomination to the Supreme Court late in the Obama administration. Thereby beginning the overturning of SCOTUS to blatant “conservative” total control and the quick, questionable appointments of Trump’s personal choices. McConnell’s control while being the minority party in the Senate is highly questionable and can only be attributed to the cowardice of the Republicans who continue to be in Trump’s thrall.

  3. If there were ever a wake-up call for Americans of all colors, it was the past administration. Recognize the importance of the vote to how you live. Make sure you are registered. Make sure you know where your precinct’s voting station is. Make sure you can get there. VOTE! VOTE! VOTE!

  4. Piggybacking on Joann’s comment, with McConnell in virtual control, going back to the days of he and Boehner disallowing GOP members of congress to even “do lunch” with their Dem counterparts, we have come to live in something of a “shithole” country. With what McTurtle has been able to do to the juduiciary, both at the level of SCOTUS, and beyond, and with Alito (younger than myself) and Mr. “I ain’t evolving!” Thomas, we are in a sad “state.”
    Judicial legislation? Like all else, when it works for the conservatives, it’s just fine. The GQP, and its allies, are not, as in the UK, even a “loyal opposition,” they are like the original Scandinavian Kraken; grabbing everything they can for themselves.
    This may be a happier 4th than it would have been if the crybaby had won, but it is not a happy one for me. The disparity between what could be, and what is just grew a new tentacle.

  5. Todd your comment about African-Americans who are Republican remind me that MLK was aware that not only race but also class, socioeconomic status created oppression of people both black and white. I recently spoke with an African-American neighbor who insisted that there is no excuse for people to not get trained for a decent paying job. He sounded like someone who is Republican. He sounded like a man who thinks that every person of color can work their way through obstacles facing them.

    In the Arizona law, we have suppression of votes by Native Americans who have been severely disenfranchised over the course of this country’s history. Many of them in Arizona don’t even have running water. (Dig Deep is addressing the lack of water infrastructure.)

    I am not surprised at what SCOTUS did. I wish someone would expand the # of justices on SCOTUS so that it is no longer partisan. The reproductive rights of women and the civil rights of the LGBTQ plus community are endangered because Mitch loaded the court with conservatives. How dare they accuse democrats who want to increase the # of justices to the SCOTUS of loading the court. Mitch has also loaded the federal courts with conservative justices.

    If we are going to support the right of all citizens to vote, we will need to create organizations that help citizens in need of voter ID, transportation etc. to offset the suppression of our voting rights. We will have to mobilize all over the nation to do this. The midterm elections are rapidly approaching. We will have to be as brave and determined as the hobbits in the Lord of the Rings especially Samwise( the real hero). Who is with me? Who is willing to share their car, make phone calls to get out the vote?

  6. hearing the south east side of missouri being heavely evangelic and pushing aside the jab as a whtever they preach. new voter laws, directed as i see,at lower wage/poverty and less fortunate.
    seems the biggest majority of poverty is the white. and if the minority races keep pace as they did in 2020,we may witness the so called shooting of ones foot.theres already a move by legal eagles to challenge the state versions of jim crow. stepping back into the past and hearing legislatures lame ass versions of why we need a voter i.d. when they preach less goverment etc. if they say,and wave a dont tread on me flag,but will deny a persons right to vote, whos its threading on who? taking stock in flag use,, who the hell said our flag is gray and black now? seems the fanatics of suppression,nationalism or trumpism has decided thier flag is now gray and black. peel back that blue sripe and ya may find a swastika..

  7. Once again we see that everything Republicans touch turns to crap. The law, SCOTUS’s perversion of it, civil rights, income fairness, public education equality? None of this matters to the fascists who have been the tools of corporate/banking America since the Civil War. They are now seeing the fruits of their bribery because so many apathetic Americans just pop another beer open and change the channel.

    This grand experiment in democracy is being eaten away by those who once professed their support and work to uphold the Constitution. Not any more. The bastard foxes are in the hen house of our nation and will not stop until they’ve ripped it apart. Think Germany from 1932 – 1945. We’re gonna see our version of the Reichstag fire in August.

  8. As of this “Independence” day, the GOP has a rock wall, united message for 2022: “the sacredness of life” (aka no abortion), “2nd Amendment Rights” (aka freedom of guns), “individual – liberty” (aka you can do anything you want, say anything you want – American exceptionalism).


  9. The court’s majority ruling should be the dissent of Kagan, but isn’t – quite the contrary. I am concerned with the court’s ruling as it affects the voting rights of minorities, to be sure, but I am also concerned with the court’s secondary findings that amount to approval of Dark Money in reinforcing the wrongly decided Citizen United holding as well as the legislating from the bench as mentioned in Kagan’s dissent. (I have written elsewhere about the majority’s legislating from the bench before reading her dissent in the course of my demand that we add four more justices to the court.

    So what’s next? Will the court make voting even more difficult based on race, however contorted the language of the court in arriving at such a patently unconstitutional (Fourteenth Amendment etc.) holding? Will new targets (via legislation from the bench) include Baptists? Jews? Unitarians? Latinos? Muslims?

    With a wrongly arrived at stare decisis at their beck and call, who can know, and with Trumpers and such as Flynn who are openly advocating violence with an aim (in addition to the reinstatement of Trump to the throne) to reinstate jellybean counts, poll taxes, Dred Scott, a reversal of Brown v. Board and back of the bus policies, it is clear to me that we must add four more justices to the court in the hope that we can reverse the court’s legislating from the bench and live up to our constitutional duties as citizens to not only maintain but expand our democratic values this Independence Day.

    Finally, and for the umpteenth time, I here again this July 4 remind anyone reading this that our democracy is the most valuable asset we hold in common and is one of the last few things we have left worth dying for, as many have, including two of my friends, and that it is to be defended at all costs from all enemies, foreign OR domestic (currently authoritarians such as Putin and Trump, respectively).

    We once long ago declared our independence from English tyranny; let us this day declare our opposition to those who would destroy our democracy with their pretenses of “voting integrity” and other such misnamed legislation, seditious attempts to end a constitutional requirement of congressional count of electors for the presidency etc., and let us not “become weary in well-doing.” Democracy is fragile; let’s protect it – vigorously – now and forever.

  10. I well remember when the Voting Rights Act was passed in 1965. To get that far, people lost their lives. Remember Schwerner, Cheney, and Goodman? Others, too, of course, but these three still stand out because they were murdered together and then buried in an earthen dam. Their killers were apprehended and brought to trial, and the jury of their peers declared them not guilty. The killers were brought to justice only because the Federal government brought them to trial for denying the three victims their civil rights.

    Since then there have been attempts to whittle away at the Voting Rights Act . Apparently Republicans cannot win elections unless various impediments to voting are put in place. We even have the ludicrous attempts by Republicans to overturn the already certified results of the 2020 election.

    We can’t let them get away with it.

  11. That particular case decided by the Supreme Court had to do with whether it was racially discriminatory to not count votes cast in the wrong precinct and to ban ballot harvesting. One could argue whether these were good practices in terms of policy, but to say they’re racially discriminatory was a stretch. States have wide latitude on how they run elections. If you’re going to take a case to the SCT based on discrimination, you have to have something more than practices that might result in a few ballots not being counted. It was a very fact sensitive decision – different facts might have different results.

    I agree that the motive – Trump’s Big Lie regarding the stolen election – for states to make these voting changes is as phony as a $3 bill. But the practical effect of these changes on people being eligible to vote and casting ballots will be negligible at most. It will though hand the Democrats a potent issue – “Republicans don’t want you to vote!” – issue going into the midterms.

    The fact is it’s much easier to get registered and to vote today than it was 10 or even 20 years ago. There is no comparison. If people aren’t voting, it’s 99.9% a personal choice and not some perceived “obstacle” to voting.

    I will preach this once again. You have two things involved when it comes to voting. The casting of votes and the counting of votes. Democrats need to stop obsessing over the former and instead worry much more about the latter. There are a whole army of local partisan officials who count the votes. Then you have state elected officials and members of Congress (with regard to electoral votes) who then certify the votes and confirm the results. Biden is President today because there was a whole army of local Republican officials did their job honestly and professionally and enough members of Congress who did their duty to confirm the electoral vote total.

    Trump and his minions have been replacing those local GOP officials who did their jobs honestly last time around. The Trumpers want people in place for the next election who will do their bidding. And many GOP dominated state legislatures are changing the rules regarding who counts the votes and how. Some proposals would even give state legislature the right to override the state’s popular vote for President. But instead of worrying about these real threats to democracy, Democrats are obsessed with trivial changes to voting procedures that won’t make a modicum of difference on turnout.

    Imagine it’s 2024. The GOP nominee is Ron DeSantis and he’s squaring off against President Joe Biden. Biden wins enough states to narrowly win the Electoral College. But DeSantis pulls out the Trump playbook and screams election fraud and demands he be awarded the Presidency. As a result, a handful of Republican dominated states Biden won refuse to certify the results and instead give their states’ electoral votes to DeSantis. Or, let’s say they don’t do that, but Congress refuses to recognize the electoral votes in several states Biden won and they instead declare DeSantis the winner.

    People view the Electoral College as a problem because a popular vote winner can lose the electoral vote. No, the problem with the Electoral College is the archaic machinations built into the system which opens the door for so much mischief to happen in the counting and certification of the votes. This hasn’t been a problem thus far because we in the past had a commitment to American democracy and honest, fair elections. That’s gone out the door in the Trump era. A sizeable percentage of Republicans are willing to choose autocracy over democracy if it gives them the results they want.

    The Democrats should focus their efforts on changing the Electoral Count Act of 1887 which opens the door for Congress to override the will of the people when it comes to counting electoral votes.

  12. “Democrats need to stop obsessing over the former and instead worry much more about the latter.”

    Paul K. Ogden; do you mean like Arizona’s election audit which is still going on after months of recounting? And Georgia’s THREE vote counts with the same outcome as they looked for that “find me just one vote” order from Trump?

  13. Vernon Turner: What do you mean about our version of the Reichstag fire in August. What are you telling us?

  14. jan2 – thanks for remembering Schwerner, Cheney, and Goodman – as I like the point out, they died in Philadelphia, MS, where Ronald Reagan began his presidential campaign.

    Paul – while I agree with you on the real potential problem of vote counting, and believe that every “fix” can be broken, you do continue to maintain your belief that any “inconvenience” is minor.

    However, why the hell do they redraw precinct lines? Why do people need to figure out which constantly changing polling place to go to. Sure, most of my life, I have had consistent polling sites, but that doesn’t mean that some government entities are above changing them in black neighborhoods. That also doesn’t mean that “Democratic” voters aren’t more likely to move than “Republican” voters. (someone should check the stats, but I think they have.)

    Most elections aren’t that close, but some are.

    Here in Indianapolis, working the polls, I have seen several people lose their vote by showing up at 5:45 only to find that their polling place has changed. That is just plain wrong, especially in the days of electronic tabulation.
    So, why are we making all of these rules that seem to just be excuses to exclude votes (and I don’t care which sides votes they are).

    On another note, why would increasing the number of justices by Democrats be court packing, but the ever changing “McConnell” rules which resulted in two justices not being appointed by Democrats, although that would have been the case twenty years ago, not called court packing.

    Also, we are still dealing with the “the center is just to the left of Genghis Khan” Overton WIndow. Manchin is not a “moderate”; he is a “conservative” Democratic – Liz Cheney isn’t a “moderate” either. However, listen to any newscast (even NPR and MSNBC) and you wouldn’t know that.

  15. I can’t believe you people forgot that on the reservations in Arizona, some of those voters haven’t voted in decades because they didn’t have a “home address” or a vehicle to get to the polling place that is over 100 miles away. The county recorder in Tucson is the first native American to hold that post. I met her when we took a civics refresher course together about 7 years ago. She has spent years working to get all of the eligible voters in southern Az a ballot.

    What is wrong is that voting by mail should be the way we vote! Period, end of story. The 2020 election is proof that if voters are allowed to vote from home and mail in their ballot or drop it off, the participation rate is sky high. They need to stop making it harder to vote and make it easy. Once and for all.

  16. Every social structure is a faith-based abstraction. By that, I mean that it instills an order because the vast majority of the people who choose to belong have faith that the purpose of the institution legitimately serves the community that comprises it, and that purpose is delivered to that group with acceptable reliability. This applies to corporations, villages, cities, counties, states and the nation, global corporations and governments like the United Nations, churches, fraternal organizations, the military, political parties, functional groups like corporate departments, or branches of governments or like the House of Representatives or Senate.

    The term that best expresses that to me is social stability. If that stability vanishes, so does the legitimacy of the institution.

    Modern society has introduced another such product into our mix politely called brand advertising which is meant to discover those linked to a common faith of some kind, and sell them products that people with that faith would be pleased with.

    Mercedes Benz aims their advertising at those who are pleased to be regarded as discriminating automobile aficionados. Their advertising reinforces what pleases the brand institution and implies that paying extra for their automobiles identifies the buyer as one with discriminating tastes and the wealth to honor them. Many such brands exist and the technology to separate society into them is well established and operated on steroids thanks to 24/7 entertainment media advertising both for products and for that entertainment source.

    This era suffers from social destabilization by brand reinforced by brand loyalty. Perhaps we always assumed that the faith invested in governmental and business structures would be more compelling than brand faith, but we have much evidence now to the contrary.

    None of this bodes well for our future.

Comments are closed.