Jurisprudence

The Roberts Court Will Not Ensure the Constitution’s Most Fundamental Right

The current protectors of democracy.
Leah Millis—Pool/Getty Images

On Tuesday, Wisconsin struggled to hold an election in the midst of a deadly public health crisis. Polling places across the state were shuttered. Lines at the polls have been long. More than 1 million voters across the state had requested absentee ballots, fearful of COVID-19. Election officials, working under emergency conditions, were ultimately overwhelmed, resulting in the delayed mailing of a number of absentee ballots. Late on Monday, in a cruel 5–4 unsigned majority opinion in Republican National Committee v. Democratic National Committee—a case name that underscores how voting rights have become a partisan issue in this country—the Supreme Court, voting along ideological lines, overturned a lower court ruling that would have counted late-arriving absentee ballots. Unfortunately, this ruling was par for the course for John Roberts’ Supreme Court, which has turned its back on perhaps the Constitution’s most fundamental right.

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On Monday, the court’s conservative majority issued a ruling forcing the voters of Wisconsin to make an impossible choice. The decision forced citizens of Wisconsin who have not yet received their absentee ballots to brave the polls—if they can even find an open polling place—and risk transmission of COVID-19, despite a stay-at-home order. As Justice Ruth Bader Ginsburg observed in a scathing dissent, the majority’s ruling “will result in massive disenfranchisement” and puts at risk the ability of “tens of thousands of Wisconsin citizens” to “vote safely in the midst of a pandemic.”

Refusing even to grapple with our fundamental right to vote, Chief Justice John Roberts and his conservative colleagues stressed that, to ensure “the integrity of the election process,” courts should not order relief on the eve of an election for fear of causing chaos and confusing the electorate. This idea—often known as the Purcell principle—may make sense in the usual course, but not in emergency conditions. The pandemic is already causing chaos in elections in Wisconsin and across the nation. The court’s responsibility was to ensure that this serious health crisis did not imperil the fundamental right to vote of American citizens. And the court caused even more chaos by releasing this decision mere hours before voting was to begin. This will inevitably cast a cloud of suspicion over Tuesday’s vote, harming the voters and making a mockery of our democracy.

The message from the conservative wing of the Supreme Court is a familiar one: Don’t turn to the Supreme Court to protect the right to vote, even in the case of a genuine emergency. As we continue the long fight over the right to vote, and even as Americans across the nation rally to battle a deadly pandemic, the court’s majority has sent the signal that it will force Americans to choose between their right to vote and their health.

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There is, of course, no right that is protected by more parts of the Constitution than the right to vote. Yet as the Republican National Committee ruling and others demonstrate, Roberts and his conservative colleagues consistently downgrade this essential element of our Constitution’s promise of democracy, giving states broad authority to trample on a cherished right that is deeply rooted in our Constitution’s text, history, and values. This is the gaping hole in the conservative majority’s constitutional vision. Under the Constitution, as Ginsburg rightly observed, “ensuring an opportunity for the people of Wisconsin to exercise their votes should be our paramount concern.”

Sadly, the Roberts court’s disregard for the constitutional right to vote is nothing new. In 2013, in Shelby County v. Holder, the court gutted the Voting Rights Act, opening the door to brazen voter suppression in states with a history of entrenched racial discrimination in voting. In 2018’s Abbott v. Perez, a sequel to Shelby County, the court announced that state electoral schemes must be afforded a “presumption of good faith” and imposed an incredibly high burden on voters seeking to challenge discriminatory electoral choices.

That same year, in Husted v. A. Philip Randolph Institute, yet another 5–4 ruling, the Supreme Court upheld restrictive voter purge statutes, allowing states to purge voters for their failure to vote.* In the wake of Husted, states have aggressively purged voters, disproportionately in communities of color, requiring tens of millions of citizens to needlessly re-register. You cannot lose a constitutional right simply because you do not exercise it—except for the right to vote, according to the court’s logic. In 2019, in Rucho v. Common Cause, the justices held that courts have no business reviewing partisan gerrymandering by states, validating the idea that states’ electoral regimes can be based purely on the desire to rig the electoral outcome. The 5–4 ruling in Republican National Committee is of a piece with all of these recent bitterly divided decisions, with conservative justices repeatedly turning a blind eye to our Constitution’s fundamental democratic principles.

The ruling in Republican National Committee will only embolden those who want to make it harder to exercise the fundamental right to vote in the upcoming November elections. We have already seen President Donald Trump and others insist that any effort to make it easier to vote, given the pandemic, would be tantamount to rigging the election. If the court refuses to protect the Constitution’s promise of democracy, that opens the doors to political gamesmanship with our fundamental constitutional principles, such as pretextual poll closures on Election Day that could skew turnout in favor of one political party or against communities of color. We’ve already seen a version of this play out in Wisconsin, where—as Milwaukee Journal Sentinel reporter Molly Beck pointed out—Madison had 66 open polling locations for a population of 258,054 and Milwaukee had just five open locations for a population of 592,025. Unless these issues are remedied in the months ahead, we will have an electoral meltdown come November.

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This is where the Supreme Court’s failure is most glaring. It is precisely in the run-up to Election Day that we have to guard most carefully against state-sponsored efforts to manipulate election results. The courts are there to guard our precious constitutional rights when passions run high, as they often do in high-stakes elections. Monday’s ruling abandons this obligation and sets a terrible precedent that compromises our democracy and encourages partisan tampering with our electoral system.

For the next seven months, the voting wars will be at fever pitch. Already the conservative majority of the Roberts court has sent a clear signal that it will not be on the side of protecting the right to vote and safeguarding our democracy.

Correction, April 7, 2020: This piece originally misspelled A. Philip Randolph Institute.