On a recent episode of Amicus, Dahlia Lithwick spoke with Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund, about voting, the Supreme Court, and the affect the death of Justice Ruth Bader Ginsburg has had on the intersection of the two issues. A portion of their conversation, which has been edited and condensed for clarity, is transcribed below.
Sherrilyn Ifill: Justice Ginsburg’s passing means we now no longer have a civil rights lawyer on the Supreme Court, right? We had a civil rights lawyer in the Supreme Court all the years that Thurgood Marshall was on, then we had Ginsburg. Now, we have no civil rights lawyers on the Supreme Court. It means that we are missing that window, that perspective, that ability to speak with clarity about the challenges faced by people who live at the margin, and who lived at the bottom, and who are subject to ongoing and systemic discrimination.
Dahlia Lithwick: This dovetails exactly with what you said about even at the event announcing Amy Coney Barrett, there was a willful blindness to the actual suffering of huge communities of brown and Black people, not just economic suffering, the actual loss of life. You see it, too, in reading some of the opinions and dissents this week—these late-night, barely analyzed decisions about a whole host of efforts by various states to make it a little bit less lethal to vote. Justice Neil Gorsuch says it’s not a natural disaster, under any construction of those words, putting COVID and the language around the suffering of COVID into scare quotes. And it’s really that strange willful blindness of who is suffering and the extent of the suffering. These are not words that go in scare quotes. This is the truth, right?
It’s also connected to selecting someone like Amy Coney Barrett to sit on the court. I can maybe best exemplify it through our Alabama case, where we challenged Alabama’s absentee voter restrictions. In Alabama, in order to vote absentee, you had to get two third-party witness signatures on your ballot. You had to include a copy of your government-issued photo ID. And actually, before we filed our suit, you also had to have an excuse for why you were going to absentee vote. Alabama still insisted on the two witnesses and the copy of your photo ID. So here we are in the middle of a pandemic in which many of our clients are suffering from preexisting conditions—they have COPD, they have asthma. They haven’t seen their grandchildren, right? Because they’re following CDC guidelines that they need to remain socially distant and that they shouldn’t be with their families. This is incredibly painful for people, and yet they’re doing it. And yet Alabama is saying: I need you to interact with three people to cast that ballot. To interact with two witnesses, and the secretary of state said on the copy of your government issued photo ID, because we said, “Well, they don’t have scanners in their homes. And these are elderly people.” And he said, “Well, they just go to Kinko’s.”
The district court issues an opinion that is detailed. It is detailed in the reality of COVID. It is detailed in the reality of who is suffering from COVID in Alabama, who is vulnerable to COVID in Alabama. It is detailed in its conclusion, based on all of the facts that it details in the opinion, that the state has failed to show that it’s procedures for absentee ballots in fact addresses potential issues of voter fraud. I mean, it lays it out, 197 pages. That’s how detailed it is. The 11th Circuit stays the district court’s injunction, and we know what the Supreme Court did. We’ve got this whole shadow docket, in which the court is not even going to really tell us why.
The Supreme Court can’t be bothered with issuing a decision that gives us some clarity about what the hell they’re talking about. It’s once again trying to get us to pay no attention to the reality of what is in fact happening on the ground and what this really means to Black and brown people trying to vote. “This is not a natural disaster.” Which natural disaster have we had in the United States that’s killed 220,000 people? There’s a way in which they get to, in these very brief little essays, create a new reality that wipes out the 197 pages of detailed reality on the ground. It’s connected to selecting someone like Amy Coney Barrett, because it’s not unconnected to my saying that there are no more civil rights lawyers on the bench.
One of the things I loved about Justice Thurgood Marshall and that others said about him, and that was also true of Justice Ginsburg, is the ability to know how to read and respect the record. For those of us who actually practice law, that’s important. We’re in there. We’re civil rights lawyers. We know all the inferences don’t go in our direction. We know the laws are not all in our favor, but we are playing the game the way it’s supposed to be played. We are coming in and we are bringing good, strong cases. And when the court swats that away and doesn’t engage with that reality, now we have a systemic issue. And we begin then to continue to add to the court people who don’t have to deal with a record, who’ve never built a record, who’ve never really had to engage at that level. Every time one of these decisions comes out from the court with some tiny little concurrence, it’s such an insult really to the enormity of the issue and to the depth of the record that was marshaled before a federal judge to demonstrate the urgency of the situation.
We see this time and time again. It’s not just these last-minute election cases. It’s this persistent sense that we can just toss hundreds of pages of findings of fact, hundreds of pages of analysis of the law. This is just not the way to do it. And I think it further erodes confidence in the courts. But I will say the one thing that does seem like a turn to me that I want to question you about is this new language we’re seeing coming out of Justice Samuel Alito, who’s saying the issue isn’t even vote fraud anymore, it’s this “cloud of doubt” that comes about when ballots are counted on Nov. 4. This isn’t anywhere in any record that I know of. This is not a legal theory. This is, as best as I can tell, Donald Trump’s sense of entitlement to have an answer on Nov. 3, because he wants one. That is now somehow being imported into judicial doctrine.
I’m really glad you brought that up because sometimes I worry that we miss the chilling moments that constitute some new danger that has been introduced. And you’ve surely hit on one. Where is this “cloud of doubt”? Where is all of that? That is a political argument that has been raised by Donald Trump. It’s a disinformation campaign that has been executed by Donald Trump. Where Trump is basically creating the impression that there is something illegal, fraudulent, or unusual about continuing to count ballots after Election Day, when that’s how it’s always been done. Military mail-in ballots are counted after Election Day. Absentee ballots are regularly counted after Election Day. People who voted provisionally on Election Day are coming in to cure their ballots during the week after the election. And usually the entire week after an election, those ballots were being counted. In races that are not incredibly close, it may not change the outcome and therefore lots of people don’t pay attention to it. But in races that are incredibly close, it can be quite important. And I’ve been involved in some of these circumstances where it matters. But Trump has been running this drum beat that somehow there’s something unusual about that.
This is Part Two of the disinformation campaign. He started in the spring when he realized that many organizations were fighting to make absentee ballot voting easier, certainly for Black voters in our case. And then Trump started this disinformation campaign about absentee voting. What he suggested was this is something new, unusual, illegal, fraudulent, and so forth, even though he’s done it a million times. And then Bill Barr, the attorney general, glommed onto that and said, Yes, foreign powers may be able to somehow do something with that. So, first you had the disinformation campaign to discredit the idea of absentee voting. And then you have Part Two of it discrediting counting the absentee votes after the election. And then you have this hijacked narrative in both the opinions of Alito and Brett Kavanaugh that foreshadow their embrace of this political theory. This is extraordinarily dangerous.
This is not introduced into the record in any of the cases—there’s no evidence of this. And yet, somehow this sneaking suspicion, and it shouldn’t be a sneaking suspicion to Kavanaugh and Amy Coney Barrett, who were involved in the Bush v. Gore litigation. They know very well that absentee ballots are counted after Election Day. And they know the significance of having those ballots counted. And yet we’re seeing the indications that this particular form of disinformation is likely to be resuscitated in the decisions that are likely to come over the next two weeks as the results of the election are challenged. This is so scary. This is so dangerous, and it has to be called out.