How the Supreme Court Continues to Be the Leading Obstacle to the Right to Vote

Since the 1970s, the US Supreme Court has been actively destabilizing democracy in the United States. That is the provocative thesis argued by law professor Joshua Douglas in his recent book: The Court v. The Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights.

Through an in-depth analysis of nine pivotal cases, Douglas reveals the court’s proactive role in enabling voter suppression, skewed electoral representation, and the erosion of constitutional guarantees – adding up to the disenfranchisement of  millions of voters and a powerful boost for anti-democratic forces.

From the infamous Bush v. Gore decision in 2000 to lesser-known but equally impactful rulings, Douglas details the complex web of legal decisions that has reshaped our elections and threatened our democracy, perhaps even more than Donald Trump’s shoot-from-the-hip attacks.

The litany of cases that Douglas lays out serves as an urgent reminder not only of the challenges we face in protecting the right to vote, but also that the greatest threat to our democracy is coming not from Russia or China, but from the central pillar of our own judicial system.

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Jeff Schechtman: Welcome to the WhoWhatWhy podcast. I’m your host, Jeff Schechtman. It is not an exaggeration to say that democracy is under siege, not just in the aftermath of January 6th, or the dictatorial threats of Donald Trump, or the rise of authoritarian impulses in American politicians and their constituencies. It’s under siege from perhaps the very institution that should be its bulwark, the US Supreme Court. In a series of critical decisions, the court has acted in ways that are antithetical to democracy, and in fact, may have provided the very foundation from which other threats have been built.

Today we’re going to discuss this with my guest, Law Professor Joshua Douglas. Joshua Douglas is a professor at the University of Kentucky College of Law and a respected legal expert on voting rights. In his new book, The Court v. The Voters, he takes us on a journey through nine pivotal Supreme Court cases that have dramatically reshaped our elections, and in turn, our democracy.

From the infamous Bush v. Gore decision, to the lesser-known, but equally impactful Crawford v. Marion County Election Board, Professor Douglas unravels the complex web of legal decisions that have led to skewed representation, voter suppression, and the erosion of Constitutional guarantees that the court was designed to uphold.

He sheds light on the court’s underlying role in enabling anti-democracy forces, and the tangible real-world effects of these decisions. As we navigate an increasingly polarized landscape, Professor Douglass’s book is an urgent reminder, not only of the challenges we face in protecting the right to vote, but also that the threats are coming not from Russia and China, but from right here inside the House.

Let’s not forget that the insurrection on January 6th may have been the work of a mob, but robed judges stood behind it. It is my pleasure to welcome Joshua Douglas here to the WhoWhatWhy podcast to talk about The Court V. The Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights. Joshua, thanks so much for joining us.

Joshua Douglas: Thank you so much for having me.

Jeff: Well, it is great to have you here. You talk about the fact that these series of decisions, which we’ll get into and which you talk about in the book, have been ongoing for some time in many ways, have built on each other, particularly with respect to limiting voting rights. When did this really begin, and what was the catalyst?

Joshua: That was one of the most interesting aspects of this research, was that I think a lot of people understand the Supreme Court has not been great with respect to various rights, including the right to vote in the past maybe 10 years or maybe even since Bush v. Gore of 2000. But I traced this back to cases in the 1970s, 1980s, and 1990s.

The court was good about having strong judicial protection for the Constitutional right to vote in the 1960s, where it recognized the Constitution’s implicit protection for voting rights, and very carefully scrutinized state laws that infringed upon that right. But then in a series of cases, as I said in the ’70s, and really these two particular cases I talk about in the book, one from 1983 and the next from 1992, were the start that set the foundation for today’s under protection of the right to vote.

Jeff: And what was it that changed, if anything, with respect to the court that triggered this, that really began this cascade?

Joshua: Well, there has been and there was a change in the court’s composition at that time, but I actually think that this is something that began from this one case in 1983, Anderson v. Celebrezze, and actually think Justice Stevens, a noted liberal, didn’t anticipate the way in which what he wrote in that case would be embellished upon in future decisions.

So I don’t think the court necessarily was trying, and there’s no one catalyst here. I think Stevens wrote what he thought was a very reasonable decision in that case, but then it was used in a way that I think even surprised him. I’ve been mentioning these two cases, one from 1983, the next from 1992, Justice Stevens wrote that ’83 case, but dissented in the follow-on case in 1992. So I think it was more something that was a slow creep and was not even anticipated by those who began it in the evolution of these cases.

Jeff: And what was it about that case in ’83 that really began this?

Joshua: So we have to go back a little bit to the 1960s, and some of those decisions that I mentioned earlier, where the court very carefully scrutinized state laws. They ask states to provide what’s known in the law as a compelling state interest, basically a really, really strong justification for a law, and also for the state to prove that the law was actually achieving its goals. The lawyers out there know this as strict scrutiny.

But in 1983, in this case involving John Anderson, who was running for president as an independent that year in the 1980 election, he started out as a Republican, saw that he was not going to get the nomination that Ronald Reagan would. So he ran as an independent, and he was too late to get on the ballot in about five states. And so he sued, challenging the state laws that would keep him off of the ballot.

And what the court said in those cases is, “Instead of making the state justify its laws with a very strong reason and proving that the law’s achieving the state’s goals, instead we’re going to create a balancing test where we balance the state’s interests, the state’s reasons for the law, with the burden on voters.”

So you start to see this, again, I mentioned a creep. You start to see where the court begins to give the state more leeway in crafting its election rules. No longer very carefully putting the state to its test, but instead letting states justify their laws with less persuasive arguments and less persuasive evidence.

Jeff: And in terms of the courts cutting back on voting rights, you even go back to a ’74 case with respect to convicted felons that in some way set the stage for what came later.

Joshua: That’s right. That case, Ramirez v. Richardson, is the answer to a question I receive all the time, which is, “If the right to vote is such an important right within our Constitution, why are states allowed to take away voting rights from individuals convicted of a felony?” And the court essentially blessed the practice in that 1974 case in which it pulled out a very obscure clause within the US Constitution, part of Section 2 of the 14th Amendment.

The 14th Amendment was one of the reconstruction amendments along with the 13th and the 15th, ratified after the Civil War. And it was really intended to enfranchise those three combined. Enfranchise former slaves and create equality in our democracy. And this obscure clause was basically intended to target those who are in the Confederacy.

It said that states cannot deny the right to vote except for participation in rebellion or other crimes. So those who rebelled against the Union states could disenfranchise them, but the Supreme Court, in my view, twisted that and that phrase, “Other crimes, you can deny the right to vote because of participation in rebellion or other crime,” and said, “Well, this means that states can take away the right to vote for any crime.”

And the other thing that’s interesting here is that felon disenfranchisement existed for a very long time in ancient Greece and ancient Rome, but it was only for the worst offenses, things like murder, rape, et cetera. And it’s ballooned to where there’s hundreds of felonies on the book that all count. And that was never the intention of those who wrote the 14th Amendment. So we do see in that 1974 case, the court allowing disenfranchisement in a way that I think is really dangerous for democracy.

Jeff: And that really represents what seems to be an ongoing pattern in that every time the court has had an opportunity, certainly since then, to restrict access in some way. It has done that.

Joshua: I think that’s right. And what’s going on here though is that the court is not explicitly saying, “We are going to restrict access,” or “We’re trying to harm voters.” Instead, they’re placing the thumb on the scale in favor of state politicians. The court’s saying, “We’re going to stay out of this. We’re going to let the state run their elections as they see fit.” I refer to this as undue deference to state politicians. We’re deferring to how they say they want to run elections.

The problem is, these are the very people that we should trust the least to decide how our elections operate. They’re entirely self-interested. What’s the number one goal of someone running for office? You’d hope it’d be to serve their constituents well, but the reality is they want to win re-election. And what better way to win re-election than to craft voting rules that make it easier for your side, your supporters to vote and harder for your opponents to?

So there’s an inherent self-interest here that makes state politicians the people we should trust the least, and we should have independent courts that scrutinize their laws. So we’ve got it backwards. Instead of crediting the voters and effectuating the voters’ rights, the court is essentially elevating the rights of state politicians to enact voting rules.

Jeff: And yet we have a system that has grown up to really be 50 different election standards in each of the states.

Joshua: Well, that’s right and that can be good and bad. What you mentioned gives us a system of federalism where we don’t really have one election day, we have 50 or 51 with DC election days. But we didn’t even really have 51, we have thousands of elections happening all at the same time with different regimes, different voting machines, states have different voting hours, different rules about eligibility, like we mentioned felony disenfranchisement.

Now, that could be a good thing in terms of allowing states to experiment with voting policies. Ranked choice voting, which is gaining a lot of popularity started in cities and then spread to other cities and statewide. Even the women’s suffrage movement that led to the 19th Amendment to the US Constitution started at the local level first. So there are some good things with having this diffuse operation of election administration. The problem is when you don’t combine that with close judicial scrutiny of election laws to make sure states are not going too far to harm voters.

Jeff: And we’ve seen some of that harm come in the nature of some of these voter ID laws, and you talk about the case Crawford v. Marion County as one of those.

Joshua: That’s a case from 2008 out of Indiana in which voters challenged the strict photo identification requirement for voting with evidence that there is a segment. It’s a small segment of people, but there’s a segment of people who simply do not have the required ID, and so they’ll be shut out of voting. And Indiana, this is a good example of where we have this undue deference.

Indiana simply said, “Well, we’re afraid of voter fraud.” And yet, it had no evidence whatsoever and they were even asked, “What evidence is there that there is in-person impersonation?” That is someone showing up at the polls and pretending they’re someone they’re not. And Indiana said, “No, we have no evidence of that, but it could happen.” And the court said, “Well, okay, that’s good enough for us.”

And so you have on the one hand, voters with evidence that this is going to disenfranchise people and on the other hand, the state saying, “Well, we’re just concerned, but you should trust us.” And the court says, “Okay, we’ll trust you.” And again, I think that’s backwards. I think we should effectuate the individual right to vote as the foundation of our democracy, the cornerstone of how everything starts, and not trust the state politicians because their motives aren’t as pure.

Jeff: And we saw another example of this, not so much with the courts, but the state legislature in Georgia after the last election, after 2020.

Joshua: Yes, really interesting, right? After 2020 when two Democrats won US Senate seats there, you see Georgia enact a law that has a whole lot of things in it, and the media and people focus on the fact that it’s a crime to give food or water to voters waiting in long lines. But I think as someone who studies this, the more concerning aspects are the rules that are creating those lines in the first place.

We shouldn’t have people waiting four or five hours to vote where we need to think about giving them food and water. So things like making it harder to deliver a ballot, having regulations on ballot drop boxes, these are all measures that the Georgia legislature passed that really don’t improve election security at all, and they just make it harder for people to participate.

There’s also targeting of minority voters, some of these laws apply only to– was it Fulton County, I think, which is Atlanta where you have a large segment of black voters who live there. And these laws were challenged, but courts have generally upheld them under this regime where we’re going to trust the states to run the elections as they see fit.

Jeff: In many ways, the Voting Rights Act was a step in the reverse direction, but that’s been gutted by another court case that you talk about in Shelby County.

Joshua: Yes, so the Voting Rights Act of 1965 was, I think, the most important Civil Rights Act ever enacted in trying to get to a place of equality to see the 15th Amendment, which says you can’t deny the right to vote on the basis of race, actually into reality. And it has been a huge success in terms of improving voter registration, improving turnout, and breaking down barriers to the ballot box, particularly for minority voters, but Shelby County, that case from 2013 guts a significant provision of the Voting Rights Act.

This is something known as pre-clearance or pre-approval. It said that certain states with a history of discrimination on the basis of race in their voting policies had to seek pre-approval before they could enact new laws and basically just demonstrate that the new rules would not harm minority voters. And so states and also jurisdictions, localities in some states would have to submit their voting changes.

Well, in 2013, the Supreme Court struck that down, or at least struck down the coverage formula, the formula for deciding which states were subject to this requirement, even though the court had upheld it five times previously. And so you see the court actually reversing itself. Now, Congress when it enacted this provision had a sunset in it, said it expires after a certain amount of time and then Congress had continued to re-authorize it because it said things have not been fixed entirely.

And every time Congress had re-authorized it, the Supreme Court upheld it until Shelby County where the court said things like, “Things have changed in the South.” Well, that’s true, but as Justice Ruth Bader Ginsburg said in her dissent, “Throwing away this mechanism, this pre-approval requirement is like throwing away your umbrella in a rainstorm because you’re not getting wet.”

Jeff: Talk a little bit about gerrymandering because one of the things that the courts have also done is encourage this process where politicians get to pick their constituencies instead of the other way around.

Joshua: It’s something that’s existed for as long as we’ve been a country. The problem is that it’s become so much more sophisticated and so much more enduring. And so you have these maps with very detailed data that goes into them in which the politicians, as you said, can choose their voters, can choose their constituents to help keep themselves in power.

You have some really remarkable numbers in places like Wisconsin where a minority of the electorate was able to choose a majority of the members of the State House, and this affects both the state legislature and congressional maps. And so you really have a skew in how this works. And people have been looking to try to get the Supreme Court to stop the practice, to throw out at least the most egregious maps, not to oversee the maps in all 50 states, but to look carefully at the ones that are true outliers.

And the court had an opportunity to do so. There had been lower federal courts that had thrown out maps using a metric that was called the efficiency gap. And it’s kind of a mathematical formula to prove when a map based on computer simulations is a real outlier and only strike down ones that are skewing the outcomes and also going to be enduring.

And the US Supreme Court basically said, “No, we’re going to stay out of this,” in a 5-4 decision in the case called Rucho v. Common Cause, and actually that case involved– it was two cases combined, one out of North Carolina where the Republicans had drawn the bad map, but another companion case out of Maryland where the Democrats had drawn a bad map.

So it shows that both sides are doing this, and yet the court said, “No, we’re not going to intervene. This is not something that courts should decide.” What does that mean? Essentially it means, well, we’re just going to trust the politicians. The old refrain of, if you don’t like what the politicians are doing, if you don’t like the maps that they’re enacting, well just vote the bums out. It’s pretty hard to vote the bums out if the bums are creating rules that make it hard to take them out of power. The bums are creating rules to entrench themselves through a map.

I think that decision in particular is really dangerous for democracy because it means that voters don’t have a meaningful solution, a meaningful way to seek oversight of a map that skews their representation.

Jeff: And talk about the process of voting and the role that the courts have played more recently in that regard with respect to things like paper ballots and electronic voting.

Joshua: States are experimenting some. I think best practices these days say that paper ballots are the right way to go with machines counting the votes. Machines are a lot better. And there haven’t been Supreme Court cases that have challenged those mechanisms except for things like when there’s instances where certain rules harm minority voters. I’m thinking of ballot collection policies.

There’s a case out of Arizona in which the state tried to limit who could deliver someone else’s ballot. And the evidence showed that this would have a harmful effect on, for example, Native American voters who live on reservations. And the court rejected a challenge to that law. So we haven’t seen the court deal with a lot of those election administration issues except for that kind of ballot collection. But what you see is the lower federal courts are hearing a ton of these cases. And again, the message is simply to trust the states.

And so you, generally speaking, have a harder time challenging a rule, even if you can prove that it might make the voting process more difficult. We saw this a ton during the 2020 election in the pandemic where the states were challenged in, for example, not opening up the voting process to vote by mail. And the courts, again, said essentially, “We’re going to stay out of this, and it’s up to the states to decide how to run elections.” And politicians think they know best about how to run elections because while they won in an election, just because you ran a campaign and won doesn’t mean you know how to run elections.

Jeff: You talk about a case in Hawaii that goes to this issue, particularly with respect to write-in votes.

Joshua: Yes, the 1992 case of Burdick v. Takushi. This case is really interesting. I focus on stories. And this story involves a guy named Alan Burdick in Hawaii who went to his polling place and was unsatisfied with the candidates listed on the ballot, so he wanted to write-in somebody else. And he asked this poll worker, “How can I write in a candidate?”And the poll worker said, “Well, the machines won’t allow that.”

And he told me when I interviewed him, he said, “I didn’t know if they meant the voting machine or the political machine that was running Hawaii elections and didn’t want a protest.” So he sued over the Hawaii rules, saying that the inability to write in a candidate meant that he could not express himself on the ballot the way he wanted to. Took the case all the way to the Supreme Court, and he lost.

The court said, “No, states do not have to require write-in voting. This again, is an example where the court is saying, “We’re simply going to trust the states to run elections as it wishes.” Another fun anecdote from that chapter is during the oral argument at the Supreme Court, the justices asked his lawyer, “Well, are you saying your client just wants to be able to write in Donald Duck, a fictional character?” It seems like a mockery.

And his lawyer said, “Well, yes, if that’s what he wants to do, that’s his expression.” Alan Burdick told me that he was really frustrated by that exchange and actually is upset that his lawyer said yes. He thinks write-in voting is an important outlet, a serious enterprise. And he could even understand, he doesn’t think it’s right, but he could accept and agree with the rule that you can only write in a real person because he thinks it made a mockery of what his argument was.

So the case is known as the case about Donald Duck, but he’s frustrated that it’s even known that way. And that case has been cited a ton, I mentioned those lower federal court decisions that have dealt with issues like voting during the pandemic. And that case is cited in a lot of them for the proposition that we should trust the states to run the elections as they wish.

Jeff: One of the other cases that you mentioned, one that people are perhaps more familiar with is Citizens United and the impact that that has had on the election process.

Joshua: Yes, and I think of Citizens United as a voting rights case. I mean, it’s about campaign finance. It’s about the ability of corporations to spend money on campaigns, but the result is that voters have less of a say in political discourse. And so I think if we consider Citizens United as a voting rights case in terms of its impact on voters, you can see how dangerous it’s become.

Now, I also try to correct some of the myths about that case. Most people think of it as the case that says corporations are people. That’s not actually what it says, and that idea that corporations have a fiction of being a legal person has been around for decades. It’s why, for example, you could sue a corporation for some sort of wrong. So the court didn’t really say corporations are people, but perhaps what it said, because it’s more subtle, is more dangerous, which is that corporations can have an outsized role in political discourse.

And also the court narrowed its definition of corruption. It said, “The only type of corruption that a state or Congress is allowed to root out is quid pro quo.” It exchanges one thing for another thing, giving a favor directly to the candidate, giving money directly to the candidate with the expectation that when in office the candidate will do something.

So the court rejected a broader definition of corruption where like, look, if I spend a whole lot of money trying to get someone elected to office, I think most people would agree that the candidate would feel like they owe something to that person who spent all that money, even if there’s no direct exchange. And yet, the court rejected that. And so this case has– you see there’s the huge amount of money being spent in politics these days, and that’s a direct outgrowth of Citizens United, but perhaps in a way that will be surprising to some readers.

Jeff: Finally, talk about Bush v. Gore, and the role that that actually played in this whole pantheon of cases that we’re talking about.

Joshua: Bush v. Gore, obviously from 2000. That ended the 2000 presidential election, and stopped the recount in Florida. Again, I will try to correct the record in some way for the public’s understanding. Most people think of it as a 5-4 decision, and that’s partially true. The decision to stop the recount was 5-4, but it was actually a 7-2 decision in terms of Constitutional harm, this idea that [unintelligible 00:26:43] was treating ballots differently.

And I think the court should have said, “Okay, we need a clear standard for how to do the recount,” and send it back and let the recount proceed and finish as opposed to stopping it. But the effects to this day have been really dangerous for democracy in that candidates now think an election is never over on election night, that you can always fight it in post-election litigation.

In the chapter, I go through disputes, post-election disputes in every major election year since then. 2004 was Washington’s gubernatorial election. 2008 was the US Senate election in Minnesota. Now, these were close elections, but they spawned lawsuits that sometimes lasted months afterwards and to really dangerous effects in 2020. Donald Trump and his supporters filed over 60 post-election lawsuits.

Virtually all of them were frivolous and yet, there is this idea in the public discourse that he kept pressing that, well, the courts might do his bidding. I see that as a legacy of Bush v. Gore in that candidates can think they can go to the court or at least tell their supporters that the courts are the way to change an election outcome. Now, thankfully, the US Supreme Court was good in this instance and rejected all the suits that made it to the court and the lower federal courts as well. But I think it’s still a dangerous mantra for democracy that the losers may not graciously accept defeat.

Jeff: And where are we going with all of this? How much more do you think voting rights can be restricted under various cases that may come up in the future?

Joshua: I think we may not have even scratched the surface, unfortunately, because the Supreme Court seems to be giving itself more power. And in a lot of these cases, the court will issue what might look like an incremental ruling or even one that seems good. So last year, the court rejected a challenge to another provision of the Voting Rights Act.

State of Alabama asked the court essentially to reverse decades of precedent, and the court refused to do so and that was great, but that was a 5-4 decision. And Justice Kavanaugh, who was one of the five, wrote a separate short concurrence in which he said, “I agree today, but I could see an argument where we might strike down this section, Section 2 of the Voting Rights Act in the future.” So he sort of invited that.

In the book, the last chapter, called “The Next Looming Case,” I discuss what’s known as the Independent State Legislature doctrine, this idea that came out of a case last year called Moore v. Harper, where again, the court rejected the extreme argument, but left the door open for it to involve itself further giving itself more power. So it’s hard to predict how much election litigation we’re going to have, but I fear we’re going to see a lot more in this election cycle and in the future. I often say that what’s bad for the country has been good for me professionally, and things have been way too good.

Jeff: Joshua Douglas. His book is The Court V. The Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights. Josh, I thank you so much for spending time with us here on The WhoWhatWhy podcast.

Joshua: Jeff, thanks so much. It was a great conversation.

Jeff: Thank you. And thank you for listening and joining us here on The WhoWhatWhy podcast. I hope you join us next week for another radio WhoWhatWhy podcast. I’m Jeff Schechtman. If you like this podcast, please feel free to share and help others find it by rating and reviewing it on iTunes. You can also support this podcast and all the work we do by going to whowhatwhy.org/donate.

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