Congress Can Restore Voting Rights

The Supreme Court takes advantage of our broken system of checks and balances.

The Supreme Court’s decision to destroy what remained of the Voting Rights Act in Louisiana v. Callais will take every element of our already broken political system and make it worse. It was not a surprise. But it shocked nonetheless.

What should we do? Boil with fury at the ruling. Scoff at the justices who claim only to call “balls and strikes,” in a game they’ve fixed. But don’t stop there. Yell, loudly, for action by the one part of our government that can do something: Congress.

The Supreme Court’s ruling leaves the Voting Rights Act “all but a dead letter,” as Justice Elena Kagan put it. Callais is a grave blow to racial equality, especially in the South. Scholar Rick Hasen warned, “This decision will bleach the halls of Congress, state legislatures, and local bodies like city councils.” We may see the fastest rollback in representation since the end of Reconstruction after the Civil War. Even if it’s not as bad as that, it will be bad enough.

Arid legal abstractions can have harsh real-world consequences. After the 2013 Shelby County v. Holder ruling, which gutted the most important part of the Voting Rights Act, the gap between white and nonwhite voters’ turnout grew twice as fast in states that were once covered by the strong protections of the law, according to the Brennan Center’s research. Callais will only worsen this disparity, especially since the justices have agreed to rush the implementation of their decision so its effects will be felt as soon as possible.

To perfume its actions, the ruling glorifies, of all things, partisan gerrymandering. And this in the middle of a nationwide redistricting frenzy. Samuel Alito explained that states can deflect even proof of a racially discriminatory map by simply claiming that the manipulative district lines aim to entrench a political party. We aren’t discriminating against Black people, you see. Just against Democrats. Case closed.

After this overt assault on our democracy, Congress has a duty to act.

First, it should ban partisan gerrymandering — immediately. Such a rule would apply to red states and blue states alike. A bill to do this has been introduced by Sens. Alex Padilla (D-CA), Raphael Warnock (D-GA), Angus King (D-ME), and Adam Schiff (D-CA), building off language from the Freedom to Vote Act. Rep. Zoe Lofgren (D-CA) put forward the measure in the House.

Such a move is constitutional. None other than Chief Justice John Roberts wrote in 2019’s Rucho v. Common Cause ruling, “[The] Framers gave Congress the power to do something about partisan gerrymandering in the Elections Clause.” He even approvingly pointed to what became the Freedom to Vote Act, which would come very close to becoming law in 2022.

Second, Congress should enact new laws to give citizens a meaningful and robust right to vote, as well as a right to sue if their voting rights have been abridged, diluted, or denied. Judges should be charged with viewing any burden or dilution with extreme skepticism. It should be easier to prove discriminatory intent. And nationwide standards for elections would make them harder to manipulate.

Finally, Callais shows the urgent need for Supreme Court reform, starting with an 18-year term limit for justices. Judicial term limits would restore accountability. They would reflect the core value that nobody should hold too much power for too long. Term limits are broadly popular. The most recent Fox News poll on the issue showed that 78 percent of the public supports them. That’s an awful lot of Republicans, on top of Democrats and independents.

Momentum is growing. A Congressional Black Caucus statement put it well. “Our nation’s highest court has been compromised,” it declared. “The CBC will make it our mission to aggressively advance Supreme Court reform. We will work to establish term limits for justices to help restore independence, neutrality, and legitimacy to the Court.”

This kind of congressional pushback used to be common. But in recent years, a paralyzed and polarized Congress has failed to do its job. This torpor created the opening for an imperial judiciary and an abusive executive. As my colleagues Miriam Rosenbaum and Emily Whitehead noted, “In recent years, the Court has repeatedly gutted landmark pieces of democratically enacted legislation that had earlier survived the Court’s scrutiny.” Citizens United destroyed a century of campaign finance laws, just as Callais finished the job of demolishing the voting rights legislation overwhelmingly passed by Congress and signed into law by a Republican president. Yet Congress failed to restore the Voting Rights Act or repair campaign finance rules, even when Democrats controlled the White House and the legislature.

This year, Americans have been energized around voting issues in response to the egregious SAVE Act, now blocked in the Senate. But rhetoric is not enough, and playing defense surely is not enough. Lawmakers must put at the center of their agenda bold, tough, unflinching steps to restore the health of American democracy.

We need to keep up the fight in the states, too. Already, states have begun a new wave of abusive mapmaking, starting with the suspension of Louisiana’s primary election. Energized advocates are stepping up to defend representation for communities of color. Brennan Center experts are sharing data with lawmakers across the South to make the case that it is not just wrong but chaotic to rush to change district maps.

As ever, the most important role falls to we the people. The Supreme Court has been captured by a faction of a faction. It has acted recklessly to undermine a fair and free democracy. Let’s get passionate on the campaign trail. We should all demand of anyone asking for our votes: What are you willing to do to protect that vote?

We need to do what patriotic Americans have done before. We must turn our anger at an outrageous Roberts Court ruling into a rallying cry for action.

IMAGE CREDIT: Jose Luis Magana/Getty