The Court chooses a side in the struggle for democracy

It has been both stunning and revolting to watch the Republican Party’s decade-long transformation into an anti-democracy party. It has also meant that the struggle for the American promise now necessarily dominates our national fate. The battle lines are decisively drawn.

Last week, in an Arizona voting rights case, the U.S. Supreme Court announced that it too has chosen sides. As many, including me, feared, the 6-3 majority opted for its patrons, not its duty. Those who still believe in government of, by, and for the people, just became decided underdogs.

In Brnovich v. DNC, Justice Samuel Alito, writing for the Court, validated a couple of challenged Arizona voting restrictions. More importantly, Alito’s opinion largely gutted section 2 of the landmark Voting Rights Act of 1965. Since Chief Justice Roberts and his colleagues had thrown out the statute’s other major component, the section five preclearance requirement, in the notorious 2013 Shelby County case, what many regard as the most important civil rights law in American history has been left a mocking, hollow shell. At long last, Lyndon Johnson turns in his grave.

The ideologically-riven Alito eviscerated the Voting Rights Act without statutory, constitutional, textual or originalist authority. This was bare and brutal exclusionary politics. Please, no more talk of “conservative” justices. Brnovich is far-right activism on stilts.

Justice Elena Kagan issued her most passionate dissent since the North Carolina-based Rucho case. She noted the Court had abused its authority “at a perilous moment for the Nation’s commitment to equal citizenship.” She explicitly cited the efforts of the North Carolina Legislature, “the day after Shelby, in eliminating same-day registration, forbidding out-of-precinct voting, reducing early voting, including soul-to-the polls Sundays” as examples of the now wide-spread assault on the right to vote. Kagan concluded:

“The Voting Rights Act is an extraordinary law. Rarely has a statute required so much sacrifice to ensure its passage. Never has a statute done more to advance the nation’s highest ideals. And few laws are more vital in the current moment. Yet in the last decade, this Court has treated no statute worse.”

Three points.

First, Alito’s opinion is careful to offer generous cover to the hundreds of Republican voter suppression laws and proposals currently sweeping state legislatures across the land. Sounding like a Fox News commentator, Alito wrote that fear of fraud, even when it has never occurred, “is a strong state interest” justifying regulation. Even, apparently, when the fear is induced by the lawmakers themselves. That tarp covers everything.

Second, if Democrats in Washington don’t act immediately to preclude these suppressive state restrictions by federal statute, they will betray the very voters who elected them and removed the greatest presidential threat to American democracy in our history. They will be readily complicit in their own demise and in the destruction of the form of government centuries of citizens and soldiers have fought and sacrificed for. It is heinous to lose self-government through timidity.

Third, even if a new and stout federal voting rights law is passed, there is no reason on earth to believe that the Republican partisans of the Supreme Court will not give it the same treatment dished out in Shelby and Brnovich. A high court committed to thwarting democracy to assure Republican ascendancy is a potent asset in the sedition wars. It may become essential to reform it.

I know that sounds extreme, and alarmist. Unfortunately, it’s deadly accurate. The pro-democracy forces don’t have the luxury of being the sweet and civil ones in a life and death struggle for the American experiment.

Contributing columnist Gene Nichol is the Boyd Tinsley Distinguished Professor of Law at the University of North Carolina.

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