[The John Lewis Voting Rights Act is a valuable piece of
legislation. So is the For the People Act. Both are destined to fail
in front of the Supreme Court.] [[link removed]]

THE DEMOCRATS ARE BUNGLING VOTING RIGHTS—BUT NOT IN THE WAY YOU
THINK  
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Elie Mystal
July 21, 2021
The Nation
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_ The John Lewis Voting Rights Act is a valuable piece of
legislation. So is the For the People Act. Both are destined to fail
in front of the Supreme Court. _

,

 

The John Lewis Voting Rights Act—still languishing in Congress a
year after its name was changed to reflect the passing of the
legendary civil rights activist, Representative John Lewis—is a
solution to a problem wholly invented by the Supreme Court. In 2013,
Chief Justice John Roberts wrote the majority opinion in a case
called _Shelby County v. Holder_
[[link removed]], and in it he stripped away a
key protection provided by the Voting Rights Act of 1965.
Republican-controlled states used the opportunity Roberts gave them to
further suppress the Black vote, and his decision is a far bigger
reason Donald Trump was able to run an openly white supremacist
campaign and win the presidency in 2016 than any tales of economically
aggrieved white people in Ohio that you may have heard about.

The John Lewis VRA is a good and sorely needed piece of legislation,
as is HR 1, or the “For the People Act,” which addresses some of
the voter suppression tactics employed by Republican states in the
wake of Trump’s defeat. But while the Democratic majority lacks the
strength to pass this bill, Senator Joe Manchin, the apparent leader
of the Vichy Democrats, believes that the Lewis VRA is the best way to
address the Jim Crow–style voting restrictions now favored by the
Republican Party. He’s even got one Republican, Lisa Murkowski, to
go along with him. No word on the other nine it would take to pass the
bill while still upholding the antidemocratic filibuster that Manchin
claims is integral to “democracy.”

Unfortunately, at this point, even if Congress somehow passes the
Lewis Voting Rights Act, it will not be enough to stop Republicans
intent on suppressing the vote. Manchin, President Joe Biden, and
congressional Democrats have somehow convinced themselves that the
Lewis VRA will succeed where the original Voting Rights Act failed and
be upheld by the current, conservative-controlled Supreme Court. They
think it will be able to withstand the court’s skepticism towards
federal protection of voting rights expressed not only in _Shelby
County_ but also in this month’s decision in _Brnovich v.
Arizona_, the court’s latest frontal attack on the right of
minorities to vote. In a nod to the obvious conservative supermajority
arrayed against voting rights, you will hear liberals say that the
Lewis VRA needs to be passed in a way that is “constitutionally
bulletproof.”

It is pleasing, no doubt, for elected officials and their constituents
to believe that there is something that can be done legislatively to
overcome the voter suppression favored by Republicans. Democrats need
to believe that there’s something that they can “do,” and
Democrats need their voters to believe that the party is doing what
can be done. At this point, Democrats are basically Slim Charles
from _The Wire_ [[link removed]]: “If
it’s a lie, then we fight on that lie. But we gotta fight.”

But make no mistake, it is _a lie_. All of the comforting mouth
noises in the world won’t change the fact that the Supreme Court is
controlled by conservative justices appointed by Republicans who are
hostile to minority voting rights. There is no such thing as a federal
voting rights law that is _constitutionally bulletproof_. The Supreme
Court can strike down anything it wants, and the conservatives have
made it clear that they want to strike down the Voting Rights Act.
Roberts has spent his entire career
[[link removed]] opposing
the concept of minorities’ getting a fair chance at the ballot box
(or anywhere else
[[link removed]],
for that matter). Arguing against an expansion of the Voting Rights
Act was basically Roberts’s first real job. Clarence Thomas has
likewise spent his entire career being the Black guy who tells white
men what they want to hear: that they’ve done enough and Black
people no longer need the protection provided by laws like the Voting
Rights Act or the Civil Rights Act.

These men will not be swayed by mere congressional action to protect
voting rights. They do not believe Congress should have the power to
defend minorities. And they’ve said as much. All one has to do is
read what they actually wrote in _Shelby County v. Holder_.

Liberals hoping to restore voting rights have pinned their hopes to a
legal technicality embedded in Roberts’s opinion in that case.
Section 5 of the Voting Rights Act required certain states and
counties with a history of racial discrimination to apply for federal
“preclearance” in order to change their voting laws. Shelby
County, Ala., for instance, couldn’t reduce the number of polling
places or require new forms of voter identification without first
getting permission from the federal government. Preclearance was a
fantastic way to stop segregationists from inventing new ways to
disenfranchise Black voters, but the scheme trampled over the power of
states to control their own elections. That’s cool by me, and by the
Constitution’s 15th Amendment, but I’m a guy who knows the 15th
Amendment was necessary because of where “states’ rights”
arguments always eventually lead. Conservatives, on the other hand,
are always eager to support the lost cause of states’ being able to
discriminate against Black people in whatever way seems best to them.

In Shelby County, Roberts didn’t declare preclearance
unconstitutional. Instead, he ruled that the formula used to determine
which states and counties needed to subject themselves to preclearance
(contained in Section 4 of the Voting Rights Act) was
unconstitutional. Roberts said that by singling some states out for
preclearance, and not others, Section 4 violated the equality of
states. He then said that Congress was free to come up with some other
formula and try again.

The Democrats selling hope and rainbows have seized on this opening
and would have us believe that modernizing the formula in some way, a
way that would apply to all 50 states, would appease Roberts and thus
restore the protections of Section 5. That is, at core, what the Lewis
VRA attempts to do.

The problem is that, at best, the Lewis VRA will just come up with a
different formula for determining which states get singled out for
special treatment. Any preclearance formula will result in some
states’ having to ask permission to change their elections laws,
while others do not, and that is the big no-no according to Roberts.
Yes, Roberts spends a lot of time arguing that the old Section 4
formula (reauthorized in 2006) was too antiquated to be useful (which
itself is Roberts substituting his personal opinion where a
constitutional principle should be), but his core point is that states
should not be treated differently from one another unless you can
prove, to Roberts’s personal satisfaction, that different treatment
is functionally the only way to stop voter discrimination. There is
simply no reason to believe that Roberts will think that even the
freshest formula justifies disparate treatment of the states.

The easiest way to get around Roberts’s objection to unequal
treatment of states is to essentially make all 50 states subject to
preclearance. That’s not what the old Lewis VRA was designed to do,
but it’s an option for whatever bill Manchin seems to want
[[link removed]].
Everybody has to get preclearance.

But that bill would be even more likely to fail in front of Roberts.
Remember, the entire discussion of Section 4’s coverage formula is
just the Trojan horse Roberts is using to smuggle in his real
argument: that preclearance is a violation of states’ rights.

In _Shelby County_, Roberts calls the original Voting Rights Act
“extraordinary” nine times. He does not use that word as a
compliment. He means it literally: He thinks that the Voting Rights
Act is something “extra” that exists outside the “ordinary”
operation of laws. Instead of a bedrock achievement of decency over
darkness, Roberts views the VRA as an abnormal, emergency fire hose of
federal power that should be turned off as soon as the crosses cool
off. His entire opinion is written in the language of segregationists
who object to the very notion that the federal government can step in
and tell them what to do. A bill that essentially does away with
Section 4’s coverage formula, or expands to the point where all
states are subjected to Section 5’s preclearance scheme, would
surely be viewed as a law of Northern aggression by Roberts.

Of course, not every conservative justice has time for the Roberts’s
roundabout defenses of Jim Crow. Clarence Thomas would make Section 5
unconstitutional outright. I’m not just guessing. Thomas wrote a
concurrence in _Shelby County_ where he put it plainly: “I join
the Court’s opinion in full but write separately to explain that I
would find §5 of the Voting Rights Act unconstitutional as well.”
Boom. If push comes to shove, I bet Roberts (along with Samuel Alito
and Neil Gorsuch) are much more likely to go with Thomas than they are
to find some coverage formula they can live with. Thomas’s
concurrence is judge-speak for “mess around and find out.”

And here’s the thing: Thanks to conservative manipulation of the
Supreme Court (and the stubborn refusal of liberals to retire at the
opportune moment), the court today is even more conservative than the
one that decided _Shelby County_ in 2013. Even if the Lewis VRA
magically satisfies anti-voting careerist Roberts, there needs to be
at least one other conservative justice who goes along for that ride.

Who is that supposed to be? Alleged attempted rapist Brett Kavanaugh?
Amy Coney Barrett, a person who, to get her job, danced a tarantella
on the grave of the woman who wrote the dissent in _Shelby County_? I
find it hard to believe the Federalist Society promoted people for the
Supreme Court who disagree with _Shelby County_. Remember, all six of
the conservative justices, including the alleged moderates Kavanaugh
and Barrett, signed on to eviscerate another aspect of the Voting
Rights Act
[[link removed]],
(this time Section 2) way back at the beginning of this month. What
are congressional Democrats and President Biden hoping for, a change
of heart? Do they think if we clap very hard, voting rights will live?

There is _something_ the Democrats could do to restore the Voting
Rights Act. Expand the Supreme Court. It’s actually the only
reasonable thing Democrats can do. The Supreme Court has made it clear
that there are not five votes to support the notion that nonwhites
should have equal access to the ballot box. If Democrats do not expand
the court, then they accept that premise and leave Black
people—their actual base of electoral support—to fend for
themselves against whatever ideas Republican governors can come up
with to discourage them from voting.

But to expand the court, you first need to break the filibuster. As we
all know, Joe Manchin and Kyrsten Sinema, and probably Dianne
Feinstein and Chris Coons and three or four other spineless Democrats,
don’t want to do that. Even if the filibuster is somehow defeated,
it’s pretty clear that Biden would want to use that power to pass an
infrastructure bill as well as these well-intentioned voting rights
protections that will be easily overturned by the Supreme Court in a
few years time. The will to do what is necessary to protect Black
people from Republicans simply doesn’t exist in the current
Democratic Party.

So they feed us this lie, this falsehood that a carefully tailored
voting rights restoration bill will be above constitutional reproach,
even though the conservatives on the Supreme Court have literally
already told us precisely how they will strike down any new voter
protection bill should they have to. Democrats are trying to wish a
better Supreme Court into existence, because they don’t have the
political strength to use their constitutional powers to make one.

I know this isn’t what most liberals want to hear, but it is the
truth. Bills promising federal oversight of state elections are dead
on arrival at the conservative Supreme Court. The only way to fix that
problem is to fix that court. Everything else is a pointless show, a
cacophony of sound meant to distract people from the cold reality that
democracy is sinking.

_Copyright c 2021 The Nation. Reprinted with permission. May not be
reprinted without__ __permission_
[[link removed]]_.
Distributed by__ _PARS International Corp
[[link removed]].

_ELIE MYSTAL is The Nation’s justice correspondent—covering the
courts, the criminal justice system, and politics—and the force
behind the magazine’s monthly column “Objection!” He is also an
Alfred Knobler Fellow at the Type Media Center. He can be followed
@ElieNYC._

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