By Katrina vanden Heuvel, Washington Post Columnist, October 4, 2022.
This week, a zealous band of Republican partisans gathered in Washington intent on advancing their campaign to undermine free and fair elections in this country. It isn’t the Proud Boys responding to President Donald Trump’s call to “stand back and stand by.” Nor is it the majority of House Republicans who sustain the “big lie” that the 2020 election was stolen. It is the six-person, right-wing majority of the Supreme Court using a self-selected docket of cases to advance minority rule.
The Voting Rights Act, one of the Rev. Martin Luther King Jr.’s greatest legacies, is a prime target. Five conservative justices joined in 2013’s Shelby County v. Holder to gut the act’s core enforcement mechanism: the requirement of prior federal approval for voting changes in states with a history of discrimination. Writing for the court, Chief Justice John G. Roberts Jr. ignored the detailed record — and common sense — to make his own finding that racial discrimination was no longer a problem in the United States.
Not surprisingly, the decision opened the floodgates to the passage of voter-suppression laws across the South and in other states with Republican-majority legislatures.
Now, the act’s prohibition of voting practices that result in “denial or abridgement” of the right to vote on account of race is at risk. Merrill v. Milligan involves an Alabama redistricting plan that ensures that African Americans, who make up more than one-fourth of the state’s population, will constitute the majority in just one of its seven congressional districts. Having engaged in blatant racial gerrymandering, the state of Alabama now argues that race can’t be used as a factor to draw up a fairer map.
The most ominous case on the docket — Moore v. Harper — also involves gerrymandering.
The right-wing gang on the court ruled in 2019 that federal courts will not review cases of partisan gerrymandering — meaning, drawing congressional districts with the aim of helping one party win a disproportionate number of seats. The court’s opinion offered the reassurance that state courts would continue to curb extremes.
In North Carolina, the state Supreme Court did just that, striking down what it called an “egregious and intentional partisan gerrymander.” Now, North Carolina has asked the U.S. Supreme Court to ignore the state constitution and rule that the U.S. Constitution empowers the state legislature alone to determine how elections are run.
This wingnut argument — called the “independent state legislature theory” — ignores the entire history of elections in the United States. Yet, as The Post’s Ruth Marcus writes in her comprehensive review of the court’s threatening docket, three justices have already indicated they are sympathetic to it.
If the partisan GOP majority on the Supreme Court adopts this theory, it could have truly calamitous effects. Across the country, MAGA Republicans — inflamed by Trump’s “big lie” about the stolen 2020 election — are running candidates for governor and secretary of state and state legislatures. If the court rules in their favor and overrules state constitutions, then Republican majorities in state legislatures would be in position to follow Trump’s 2020 example: claim fraud without proof and replace the electors chosen by the popular vote with their own.
All of this builds on top of cases that have already neutered campaign finance laws and opened the sluice gates to unlimited — and often anonymous — campaign contributions. The Supreme Court ruled in 1976 in Buckley v. Valeo that money was speech and struck down limits on political spending by independent groups.
Then, in a 5-4 decision in Citizens United in 2010, the right-wing justices overturned any limits on campaign funding by corporations. Writing for the majority, Justice Anthony M. Kennedy — a Reagan appointee — risibly declared that spending by corporations or others to oppose or support candidates would not give rise to corruption or the appearance of corruption. In 2014, in McCutcheon v. FEC, another 5-4 decision, the court outlawed any limits on how much money an individual could give to candidates or campaign committees in any election cycle.
No limits on corporations. No limits on individuals. Unlimited independent spending by PACs or other nonprofits. The result: Big money corrupts our elections.
As OpenSecrets reports, non-party outside groups — think PACs and pop-up nonprofit fronts — have spent nearly $4.5 billion influencing elections since Citizens United. In the previous two decades, they spent a combined $750 million. Not surprisingly, this has led to the obscene, spiraling cost of elections.
This year’s grotesqueries featured AIPAC, the powerful pro-Israel lobby, spending millions — including two separate $1 million contributions from Republican donors — through front groups to try to defeat progressive women of color in Democratic Party primaries.
The Supreme Court is the country’s least democratic branch of government. Its appointed, unelected justices serve lifetime terms. They select the cases they hear. And now, after a 40-year campaign by conservatives, the court has a six-person, transparently partisan majority. This session, they will continue to forward the right’s agenda — undermining civil rights, elevating religious doctrine, rolling back the power to regulate.
At the center of that will be their assault on democracy. The House Jan. 6 committee has exposed Trump’s multilayered campaign to overturn the results of the 2020 election. Now, we need an independent inquiry to detail how right-wing justices have subverted our democracy, so we can determine what can be done to save it.