By Karen Rubin, News-Photos-Features.com
What if states pass a voting law that there can be only one voting place and one voting machine per 100 square miles. That sounds like equality, doesn’t it, except if one district has 5 million voters and another has 500.
Or what if states pass a voting law that no vote can be cast beyond 5 pm, even if the line is stretching a mile (in that place where 5 million voters are on line at one voting place)?
Or what if states empower partisans to reject absentee ballots they deem to have signatures that don’t quite match, so that one district might have many ballots rejected but not another.
Or what if states decide to purge all voters with the last name Lopez or Brown because a Lopez or a Brown was on some list, no matter if it is the same Lopez or Brown, without informing Lopez or Brown they have been purged or giving them the ability to redress the problem.
Or what if states give a wink and a nod to partisans who send out the wrong polling place and time, so that they can then reject those ballots without giving the voter any recourse to vote by provisional ballot.
According to Supreme Court Justice Sam Alito, all of this is A-OK since the law applies to all voters, no matter that some demographic groups over others might.
And by the new standard he has invented, if many states adopt the same voter suppression laws (as crafted for them by ALEC or the Heritage Foundation), that makes them even more valid.
In 2021 alone, Republicans have introduced over 404 voter suppression bills in 48 states, including Georgia, Texas and Florida – many of which target Black and brown voters, but all of them designed to enable Republicans to select who gets to vote and how those votes are counted (or not). And in the 28 states controlled by Republicans, these are being steamrolled through.
And even though these laws have been demonstrated to disproportionately impact certain demographic groups (voters of color, youth, poor, urban, elderly) and the proponents of the law have even said the quiet part out loud that the intent is to suppress votes even without evidence of voter fraud, Alito, has declared that is perfectly okay. In fact, go for it!
In his majority opinion in Brnovich v. DNC, Justice Alito invents an entirely new standard to overturn a law that suppresses voting:
Basically revealing his extraordinary bias as the basis for his decision, Alito wrote, “the size of any disparities in a rule’s impact on members of different racial or ethnic groups is also an important factor,” adding that courts may discount disparities “to the extent that minority and nonminority groups differ with respect to employment, wealth and education.” Sounds like his standard for voting is what was in the original text: only white males with property can vote.
And he showed he was all-in on using the Big Lie that voter fraud had anything to do with the 2020 election, to “legitimize” his ruling.
“Fraud can affect the outcome of a close election, and fraudulent votes dilute the right of citizens to cast ballots that carry appropriate weight,” he wrote. “Fraud can also undermine public confidence in the fairness of elections and the perceived legitimacy of the announced outcome.”
Except that there was no evidence of voter fraud to justify Arizona’s voter suppression laws – or any of the other 60 cases Trump brought to try to overturn the 2020 election.
You know what else tips the balance in a close election? Barring specifically targeted voter populations from the polls, rejecting ballots using arbitrary standards in order to disqualify targeted populations, and effectively disregarding results that don’t suit meet the objective.
A state that suppresses votes in order to get the outcome it desires nullifies the will of other states – not only in the representation in the House and Senate, but in the Electoral College. And it doesn’t take a bunch, just a few states (for example, Arizona, Georgia and Wisconsin).
As Justice Kagan noted, only 10,000 votes in Arizona determined the winner of the 2020 presidential election (Biden) and handed him those electoral votes to hit the magic number of 270.
Justice Kagan took the radical rightwing extremists to task, citing in her firey dissent “a significant race-based disparity in voting opportunities,” and blasting the Majority’s list of guideposts as a recipe for voter suppression. “The list — not a test, the majority hastens to assure us, with delusions of modesty — stacks the deck against minority citizens’ voting rights,” Justice Kagan wrote. “Never mind that Congress drafted a statute to protect those rights — to prohibit any number of schemes the majority’s non-test test makes it possible to save....Elections are often fought and won at the margins — certainly in Arizona.”
She added, "What is tragic here is that the court has (yet again) rewritten — in order to weaken — a statute that stands as a monument to American's greatness, and protects against its basest impulses. What is tragic is that the court has damaged a statute designed to bring about 'the end of discrimination in voting.'"
What this Supreme Court decision means is that the scores of legal challenges against the flood of state voter suppression laws may well be dismissed under Alito’s newly fabricated standard.
Chief Justice John Roberts has led a decades-long crusade against the 1965 Voting Rights Act, going back to his time as a clerk for Justice William Rehnquist (who endorsed Plessy v. Ferguson, the “separate but equal” doctrine upholding segregated schools), and then during his time in the Reagan administration. Roberts tore up Article 5 in Shelby, in 2013, ending the requirement for states with a history of voter suppression to get pre-clearance on new voting laws (within hours, the states introduced voter suppression laws), and with this latest decision has sucked the guts out of Article 2, which provided a means to overturn discriminatory voting laws.
What this shows is that it is time to reform of the Supreme Court. Supreme Court Justices are not the Pope, and even the Pope is not infallible. The high court was cobbled together by the Founders (themselves fallible humans trying to invent a new form of government) without a clear idea of its role (it wasn’t until 1803, Marbury v. Madison which established the principle of judicial review—the power of the federal courts to declare legislative and executive acts unconstitutional) - at a time when living to the age of 65 was remarkable. The notion of giving a life-time appointment was intended to avoid political influence (the Founders were really, really concerned about the corrosive impact of political parties), but clearly, going back to Scalia and Bush v Gore, the radical rightwing Supreme Court majority no longer cares about the pretense to insure laws adhere to the Constitution, and are all-in for using the court to achieve political ends.
The size of the Supreme Court, which is not set out in the Constitution, has been changed many times – indeed, Mitch “Machiavelli” McConnell, as Majority Leader, forced a change for more than two years, when he refused to appoint a successor to Scalia. Court packing? McConnell is a master at it.
So has the process of voting, and who can vote changed since 1791. Mail-in ballots, for example, began in the Civil War, to enable soldiers to vote from the field (and likely secured Lincoln’s re-election).
The function of the Supreme Court – the “originalist” conservatives insist – is to make sure laws adhere strictly to the Constitution. But the right wing extremists who have dominated since 2000 and the blatantly unconstitutional Bush v Gore decision (followed by the equally anti-constitutional Citizens United), and again in setting aside the Voting Rights Act reauthorization in 2006, have clearly demonstrated they intend to use their power to reshape laws and lives.
Indeed, the language of the 14th Amendment is plain: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The language of the 15th Amendment also is plain: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. The Congress shall have the power to enforce this article by appropriate legislation.
Alito basically declared that law and equal justice before the law do not matter. The political ends justify the means. And in this instance, he is resurrecting states rights, a throw-back to what the Civil War was fought over (no coincidence).
Voting rights are under multi-pronged assault (you might call it a conspiracy), in which the radical right-wing Supreme Court is one agent.
The vote is the fundamental right upon which rest all the other rights we Americans hold dear. It is under assault at the state and local level, at the federal level, and now in the highest court which has demonstrated its inclination toward a White Christo-Fascist order, in its rulings putting religion ahead of civil rights, corporate interests ahead of workers, wealthy interests (Citizens United) ahead of common people.
So in addition to passing federal Voting Rights Act which set minimum federal standards for access to the ballot and protection of free and fair elections (this necessitates ending the filibuster), there needs to be reform of the Supreme Court: expanded to 13 (to redress the three seats stolen by Mitch “Machiavelli” McConnell); term limits instead of lifetime appointments, so that every president gets to select a judge within a four-year term; ethics reform so that a Justice Barrett can’t refuse to recuse herself on a case involving her father’s company, or a justice can’t go hunting with a defendant in a case (Scalia and Dick Cheney); barring the ability of the Federalist Society and influential donors to buy seats on the Supreme Court and federal courts.
As President Biden said in reaction to the Supreme Court decision, “After all we have been through to deliver the promise of this Nation to all Americans, we should be fully enforcing voting rights laws, not weakening them. Yet this decision comes just over a week after Senate Republicans blocked even a debate – even consideration – of the For the People Act that would have protected the right to vote from action by Republican legislators in states across the country.
“While this broad assault against voting rights is sadly not unprecedented, it is taking on new forms. It is no longer just about a fight over who gets to vote and making it easier for eligible voters to vote. It is about who gets to count the vote and whether your vote counts at all.
“Our democracy depends on an election system built on integrity and independence. The attack we are seeing today makes clearer than ever that additional laws are needed to safeguard that beating heart of our democracy. We must also shore up our election security to address the threats of election subversion from abroad and at home.”
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