Jurisprudence

The Roberts Court Has Made the Looming Coronavirus Election Crisis So Much Worse

John Roberts, in robes, walks out of a room.
U.S. Chief Justice John Roberts walks out of the Senate chamber after the impeachment vote on Capitol Hill on Feb. 5. Mandel Ngan/Getty Images

The U.S. Supreme Court’s 2013 decision in Shelby County v. Holder left a gaping hole in our Constitution’s promise of democracy and opened the door to rampant voter suppression. Now COVID-19 is making things exponentially worse.

The 5–4 ruling in Shelby County transformed our multiracial democracy, eliminating our nation’s most successful weapon against racial discrimination in voting. It gutted the Voting Rights Act, the crown jewel of the civil rights movement. By preventing states with a long history of discrimination from instituting discriminatory voting changes, the act—until Shelby County—helped safeguard the constitutional mandate of equal political opportunity for all citizens regardless of race. Turning a blind eye to the Constitution’s explicit grant of power to Congress to eliminate racial discrimination in voting, Chief Justice John Roberts’ majority opinion claimed that, because the South had changed, the act’s formula defining which states were covered by the requirement to preapprove voting changes was unconstitutional.

Our democracy has not been the same since. After the ruling, polling places, particularly those located in communities of color, have been closed en masse. In the six years following the ruling, 13 states slashed nearly 1,700 polling places, forcing people to travel further to vote and making polls more crowded and lines longer. On Super Tuesday this year—seemingly a lifetime ago—black and brown voters waited upward of seven hours into the night to vote at a polling place at a historically black college in Texas. These long lines, as Ari Berman observed, were due in part to the fact that Texas closed 750 polling places—many in growing communities of color—after the Roberts court gutted the Voting Rights Act.

In recent years, millions of citizens, disproportionately voters of color, have been purged from the rolls, needlessly forcing them to reregister. From 2016–18, 17 million citizens were subject to voter purges, predominantly in jurisdictions previously under federal voting rights supervision because of their long history of voting discrimination. These purges—many targeting brown citizens based on supposed noncitizenship—have only picked up speed. And, on top of that, harsh voter identification laws—based on the lie that in-person voter fraud is a real problem—have made it harder for black and brown citizens to exercise their constitutional right to vote.

The pandemic is exacerbating these problems. States are moving and consolidating polling places, and eliminating voting in senior citizens’ centers and nursing homes and other places designed to make it easier for older Americans to vote. This is a sensible precaution to protect public health—as COVID-19 represents a particular threat to the elderly—but, on top of years of closures spurred by Shelby County, it means that it is harder than ever for individuals to find a polling place to exercise the right to vote, particularly for communities of color.

Polling place closures are likely to be most severe in urban communities, where voters of color are concentrated and where concerns about the spread of the virus are heightened. For example, in Milwaukee, where a primary election is supposed to go forward next week, polling places for the upcoming primary went from 180 to five. Holding an election under these circumstances would be cruel and undemocratic, and we are likely to see a replay of the situation in November unless we act soon.

Further, millions of purged voters have to reregister at a time when states around the country are insisting that people stay at home. And purges are not stopping, even as voter registration has been crippled by DMV closures and social distancing rules. Recently, Georgia instituted a mass purge of hundreds of thousands of voters. The courts restored the registration of some of these voters, but much of the purge was upheld, due in part to a recent Roberts court ruling that gutted federal voting rights protections. In 2018, in Georgia and elsewhere, as gubernatorial candidate Stacey Abrams put it, “democracy failed” without the protection of the Voting Rights Act. This year, the pandemic is making efforts to purge the electorate even more destructive of our democracy.

As a nation, we must ensure that no one has to choose between exercising their right to vote and protecting their health. But in ensuring the integrity of our democracy in the wake of COVID-19, we cannot lose sight of barriers to registration and voting that states previously under federal supervision have piled upon voters of color. We need a democracy that works for all of us.

Is there a way forward? Perhaps, but it requires the public to put pressure on our elected leaders to ensure that the pandemic doesn’t imperil our Constitution’s promise of democracy for all.

First, online voter registration, which already exists in 39 states, is vital to allow purged and other voters to exercise their constitutional right to vote at a time when voter registration has largely moved to the digital realm. Currently, 1 in 6 Americans live in states that still do not fully allow online voter registration. Second, we need to find ways to facilitate vote by mail and expand early voting. These can maximize voting opportunities without the need for close contact and can make polling places less crowded and lines shorter—imperatives in the age of social distancing. Third, we need polling places that are safe, clean, and accessible for all citizens, so that citizens can exercise their right to vote, even as they comply with strict social distancing rules. As polling places are consolidated, election authorities must ensure that all citizens regardless of race have an accessible and safe place to exercise their right to vote.

Unfortunately, conservatives—who killed efforts to restore the Voting Rights Act to its former glory after it passed the House of Representatives in late 2019—have trotted out a litany of specious arguments to justify their failure to protect voting rights, even in a pandemic. During Senate deliberation over the stimulus bill, Sen. Mike Lee insisted that “this isn’t Congress’s place to act in the first place,” ignoring Congress’ explicit constitutional authority to protect the right to vote in federal elections. Sen. Ben Sasse claimed that safeguards to protect the vote in November have “nothing to do with the coronavirus,” while Sen. Marsha Blackburn argued that protecting the vote is playing “political games and antics.”

Conservative groups insisted that increasing opportunities for voting by mail was an effort to “rig elections.” In Georgia, state House Speaker David Ralston said that mailing an absentee ballot to every registered voter “will be extremely devastating to Republicans and conservatives in Georgia.” President Donald Trump went even further, suggesting that facilitating higher “levels of voting” would mean that “you’d never have a Republican elected in this country again.” As Trump’s candid concession betrayed, conservative arguments for leaving a discriminatory status quo in place are, at bottom, about ensuring their stranglehold on power.

Throughout our history, we have protected the right to vote, even in the midst of war and deadly diseases. Creative solutions to make our democracy work for all of us, while battling a pandemic, do not constitute vote rigging—they are upholding what our Constitution promises. If we fail to live up to our constitutional responsibility, it will hurt all voters, but it will fall hardest on communities of color, who have already felt the devastating impact of abandoning our constitutional commitment to an inclusive democracy open to all.

For more on the impact of COVID-19, listen to this week’s What Next: TBD.