Roberts Played 'Long Game' on Voter Suppression

             John Roberts is widely credited by, among others his biographer Joan Biskupic, with playing “the long game” as chief justice, focused not only on decisions in the current term but on creating legal precedents that will help advance his ideological agenda in years to come. If Roberts in fact has 20-20 foresight, it is reasonable to ask whether he anticipated as early as 2013 what is happening now in 2021: Republican lawmakers in politically competitive states, freed  by the Court from federal oversight, rushing to enact laws aimed at making it harder for minority voters to cast ballots.

            Roberts, it will be recalled, led the Court’s decision in Shelby County v. Holder (2013) to strike down the preclearance provision in the federal Voting Rights Act, the provision that required states with histories of racial discrimination in voting to submit any changes in election procedures for approval by the Justice Department or a federal court in Washington.

           Three of the states previously subject to the preclearance provision – Florida, Georgia, and Texas --  are among the Republican-majority states that have enacted new restrictions on voting in the past few months Republicans have advanced the laws on the strength of unsubstantiated claims that the 2020 presidential election was tainted by election irregularities and voter fraud.

          Outvoted Democrats have strongly opposed the laws, with their various provisions to make it harder to cast ballots by mail or to deposit ballots in “drop boxes” in advance of Election Day rather than wait in long lines to vote on Election Day itself. The Democratic opponents have argued that the laws will have disproportionate impact on Black and Hispanic voters compared to the impact on white voters.

       All three of the laws would be dead on arrival if submitted for “preclearance” under the former Voting Rights Act provision on the ground that each of them would evidently reduce voting rights for minority voters. To obtain preclearance, each of the states would have had the burden to show that the proposed changes would not disadvantage minority voters

          Two of my press corps colleagues, Joan Biskupic in a column for CNN in March and Bloomberg’s Greg Stohr in an article  published on May 8, have already pointed to Roberts’ decision in 2013 as the necessary basis for allowing those states to do what they are now doing. Stohr’s article appeared under this headline: “GOP’s Voting Curbs Show Long Reach of 2013 Supreme Court Ruling.”

            Neither of my colleagues made the additional point, however, that Roberts, a pretty smart guy after all, must have foreseen that the former preclearance states would use their newfound freedom to try to suppress minority voting.

            The political lines on voting restrictions had already been drawn by 2013. With the Supreme Court’s acquiescence, Republicans were enacting voter ID laws based on unsubstantiated claims of voter fraud even as Democrats and voting rights advocates were warning that the laws would pose obstacles for minority voters.

            Roberts had been part of the 6-3 majority in a decision from Indiana in 2008 that had upheld the first of those laws to reach the Court. Writing for the dissenters in the case, Crawford v. Marion County Election Board (2008), Justice David Souter argued that the Court should have required the state to produce actual evidence of voter fraud to justify the burden on voting rights. Roberts was evidently content to leave vote-suppressing states free to enact restrictions on any pretext they might devise.

Roberts’ rationale in his 5-4 decision in Shelby County five years later rested on the premise that the country had changed since the bad old days when Congress first enacted the Voting Rights Act in 1965. He reasoned that Congress should have updated the formula it enacted in 1965 for imposing the preclearance burden on nine states and some municipalities in three other states.

Writing for the dissenters in Shelby County, Justice Ruth Bader Ginsburg noted that states had moved away from the Jim Crow era of blatant racial discrimination by adopting what she called “second generation” election laws or procedures to suppress minority voters – for example, moving polling places in minority neighborhoods to make it just a little harder for minority voters to cast their ballots.

The new laws in present-day Florida, Georgia, and Texas fit Ginsburg’s description from eight years ago. On their face, the laws may appear to be race-neutral changes aimed at helping local officials administer elections. Texas’s law, however, specifically targets large metropolitan counties that saw high turnouts in 2020 thanks to various changes making it easier to use mail ballots.

            Voting rights groups are challenging those laws in federal court under the still-standing provisions of the Voting Rights Act. Without the preclearance provision, however, the plaintiffs have the difficult burden to show that the laws, if implemented, will disadvantage minority voters, just as the Republican lawmakers evidently intend.

            Republicans may have their complaints about Roberts’ votes in a handful of cases – notably, his vote in 2011 to save Obamacare. But Roberts has consistently toed the Republican line in campaign finance and election law cases throughout his tenure. As early as his years in the Reagan White House, Roberts was no fan of the Voting Rights Act and his legacy as chief justice needs to be remembered as giving a green light to the white supremacists who still today are intent on suppressing the minority vote.

The Texas law, significantly, included at one point the description of one of its purposes as protecting “the purity of the ballot box.” GOP lawmakers dropped the phrase after Democrats pointed out the racist history of the phrase from the days of Texas’s all-white party primaries, but the Republicans’ purpose remains unchanged..