The United States is in the midst of a historic wave of voter suppression laws being proposed and passed by Republican-controlled state legislatures across the country. The Brennan Center for Justice reports that “between Jan. 1 and July 14, this year, at least 18 states enacted 30 laws that restrict access to the vote.” These laws make mail voting and early voting more difficult, impose harsher voter ID requirements and make faulty voter purges more likely, among other things. More than 400 bills with provisions that restrict voting access, disproportionately impacting communities of color, have been introduced in 49 states in the 2021 legislative sessions.
As the GOP justifies their repressive effort by embracing Trump’s Big Lie, claiming the 2020 presidential election was stolen from him, the U.S. Supreme Court handed down a ruling on July 1 that makes the situation more dire. In Brnovich v. Democratic National Committee, the court gutted Section 2 of the 1965 Voting Rights Act, which held that election laws that had a racially discriminatory impact could be blocked. In the high court’s 2013 ruling in the Shelby v. Holder case, the conservative majority of justices invalidated the Voting Rights Act’s Section 5, which allowed federal authorities to block the establishment of voter suppression laws and rules in jurisdictions with histories of discrimination.
Between The Lines’ Scott Harris spoke with Steven Rosenfeld, editor, chief correspondent and senior writing fellow for Voting Booth, a project of the Independent Media Institute. Here, he talks about his recent article, “Samuel Alito’s Assault on the Voting Rights Act Is Plunging the Supreme Court Back to the Segregation Era.”
STEVEN ROSENFELD: A lot of the federal judges that were appointed by President Richard Nixon — now people will forget he ran on a state’s rights Southern strategy — and we’re seeing that same state’s rights Southern strategy resurface exactly in Texas and other states like it. But the thing that happened was these conservative judges in the ’70s, they took a look at the civil rights legislation and they did a very slick thing from the standpoint of being lawyers who did not want to support greater equality under the law.
They changed what’s called the burden of proof. And what I mean by that is when you go into court, you have to prove and present evidence that, you know, your claim is valid and someone has been injured. So what they did was they changed it from the having the “effect of a law” — which means, you know, just, this is the reality if it hits the ground — to the “intent of the legislators when they passed it” which is much harder to prove, because as you know, a lot of politicians will say one thing with a whole different set of motives and it just goes.
So the reason I’m mentioning all this is, this most recent decision by the Supreme Court resurrects that roll back in the burden of proof when it comes to this last remaining section of the Voting Rights Act. So what it means is that it basically gives states and their legislators more leeway to say, “Well, we just want to protect the purity of democracy.” And then they have these different laws and policies that actually make it harder to vote in many different contexts. And that’s what’s pernicious about this because basically, it changes that burden of proof. And it does so in such a way — and this is remarkable, really — it basically says anything that’s new in the way that people vote or votes are counted, of people have access and options since 1982 is mostly irrelevant. It goes back to 1982.
So all the early voting, “Souls to the Polls,” I mean, you just name it, you know, automatic voter registration, Election Day registration, voting by mail and sending all registered voters — all that stuff is now in play. And if states want to target at that, the Supreme Court has signaled — or the conservative majority on the Supreme Court has signaled — that they’ll stand by and uphold those state laws. So it’s really, really rolling back the clock.
SCOTT HARRIS: Steven, I did want to ask you about another element of this ruling in the Brnovich v. Democratic National Committee case and that has to do with the Big Lie because it appears that the conservative majority of justices are on the side now of justifying laws that make it harder for people to vote on protecting election security, as it were, even if that election security is based on falsehoods and lies such as Donald Trump’s lie he’s been delivering about how the election was stolen from him in 2020.
STEVEN ROSENFELD: (Justice Samuel) Alito said, “If people have to work a little harder to get a ballot and vote, so they got to work a little harder.” You know, it’s like going out to the store in the rain, or I forget the analogy. But he said that it should not necessarily be so easy. And then he said — going back to the state’s rights posture — he just said that, you know, states have the authority to make voting difficult and they can cite this voter fraud phenomena as a justifiable pretext for policing the polls. And what’s really pernicious about that — you have a false pretext that allows legislatures to overreach and overpolice at the same time they’re saying, “Yeah, we don’t really care if you make it a little harder for vote because we don’t even think everybody deserves to vote.” It’s really reactionary. It’s really a rollback.
SCOTT HARRIS: Steven, in your recent article, you quote a law professor is basically declaring that the Voting Rights Act is now essentially dead.
STEVEN ROSENFELD: Yeah. David Schultz, Hamline University, specializes in elections, presidential elections, too. Yeah and he cites that proof issue. He says the proof issue is critical. He says the court gives the benefit of the doubt to states that their laws are valid; he says the court dismisses inconveniences. He says they’re not proof of creating less opportunity. He dismisses small disparities, which means, for example, “Well, if you know, if Native Americans in Arizona or North Dakota have a hard time getting a ballot, because they don’t have a mailing address or an ID, or they have no public transportation because of other reasons, well, whatever, it’s their problem.” So it shifts the burden of proof to proving what’s in the mind of legislators. And you can’t prove what’s the state of someone else’s mind for the most part in court, especially if they’re elected politicians who are saying something to the contrary in public. It’s a near impossible hurdle to actually win these kinds of cases.
For more information on the Voting Booth project, visit independentmediainstitute.org/voting-booth.