Jurisprudence

Ruth Bader Ginsburg Predicted Georgia’s New Voter Suppression Law With Uncanny Accuracy

Ginsburg motions with her hand as she speaks seated onstage
Justice Ruth Bader Ginsburg at the Library of Congress on Jan. 30, 2020. LBJ Library/Flickr

Georgia Gov. Brian Kemp signed a sweeping voter suppression bill into law on Thursday in a closed-door ceremony attended by fellow white Republicans. When Rep. Park Cannon, a Black Democrat, tried to attend the ceremony, she was arrested and charged with two felonies. The new law, S.B. 202, is a direct response to Democrats’ recent victories in Georgia, and targets the Black communities that helped Democratic candidates secure those wins.

Republicans were able to pass the law only because, in 2013’s Shelby County v. Holder, the Supreme Court freed the state from direct oversight under the Voting Rights Act. In Shelby County, Chief Justice John Roberts notoriously declared that racism is now so vanishingly rare that Congress cannot justify the VRA’s most stringent infringement on “the equal sovereignty of the states.” Justice Ruth Bader Ginsburg’s celebrated dissent did not merely refute Roberts’ decision; it accurately predicted the wave of voter suppression laws that followed in its wake. S.B. 202 may be the most perverse vindication of Ginsburg’s prophecy yet. It is precisely the kind of Jim Crow–style attack on democracy that the justice anticipated nearly eight years ago.

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Shelby County dismantled the centerpiece of the VRA, its preclearance requirement. Under this provision, states with a history of racist voter suppression could not alter their election laws without approval from the Department of Justice or a federal court in D.C. Preclearance, which Congress overwhelmingly reauthorized in 2006, had blocked countless efforts to diminish racial minorities’ electoral impact. Yet, in Shelby County, Roberts decided that Congress had failed to prove its continued necessity. To support this conclusion, he cited statistics showing that Black voter participation had surged in the South, proving that “things have changed dramatically.”

Roberts’ opinion rests on an indefensible, made-up rationale that favors an abstract and artificial conception of states’ rights over Congress’ constitutional authority to outlaw race-based voting discrimination—the same approach, ironically, that required the VRA’s passage in the first place. It also just doesn’t make any sense; as Ginsburg famously explained Roberts’ illogic in her dissent: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

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After Shelby County, as state after state passed draconian restrictions on the right to vote and shuttered thousands of polling places—all of which disproportionately disenfranchised voters of color—Ginsburg’s umbrella quip has become perhaps the most accurate prognostication in modern Supreme Court history. Even more impressively, Ginsburg anticipated exactly the kind of laws that Republicans around the country are currently passing. The VRA successfully abolished what she called “first-generation” barriers to ballot access, like literacy and jelly bean tests. In recent decades, however, “second-generation barriers to minority voting rights have emerged” as substitutes. Ginsburg continued:

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The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective. The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclearance is no longer needed. With that belief, and the argument derived from it, history repeats itself. … In truth, the evolution of voting discrimination into more subtle second-generation barriers is powerful evidence that a remedy as effective as preclearance remains vital to protect minority voting rights and prevent backsliding.

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In essence, Ginsburg viewed voter suppression as a virus that will continually mutate to overcome each effort to suppress it. When left untreated, it will replicate endlessly until it kills its host. In its early form, the virus of voter suppression was obvious. Congress held it in check, more or less, with preclearance. After the Supreme Court removed that strong medicine, it mutated into a “more subtle” yet still dangerous second generation. Yet the voter suppression measures that Georgia implemented in light of Shelby County, including poll closures in Black communities, were not enough to kill democracy in the state; Democrats, after all, were still able to win elections.

With S.B. 202, the virus has mutated into an even more lethal form. Consider how several different components of the law interact. S.B. 202 strictly limits the number of ballot drop boxes counties can offer, and requires them to be located within early voting sites. The boxes may only be accessible when those sites are open. The bill also prohibits the use of drop boxes starting four days before an election—which is when voters need them most, since a ballot that is mailed at that point may not arrive on time. It shortens the voting period for runoff races and sharply curtails early voting for runoffs. And it compels some counties, including those with large Black communities, to reduce their early voting hours.

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These provisions all guarantee longer lines at the polls, even though Georgians—especially those of color—already wait for hours to cast their ballots. And here is the twist that elevates S.B. 202 above today’s garden-variety voter suppression laws: The law makes it a crime for volunteers to pass out food or water to voters waiting in those endless lines. Georgia Republicans have forced voters to stand outside for hours and, to make the experience as unpleasant as possible, forbidden anyone from providing them with basic sustenance to help them stay in line for as long as it takes. The inevitable consequence of this assault on the right to vote: A significant number of would-voters in predominantly Black, Democratic areas will simply give up.

Voting rights advocates have already filed suit against S.B. 202, but there is virtually no chance that this ultraconservative Supreme Court will block any provision of the law. Were it not for Shelby County, Merrick Garland’s Justice Department would have stopped this bill in its tracks. Instead, the infection Ginsburg warned us about may kill Georgia’s democracy for good.

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