On the current term’s last day, the U.S. Supreme Court overruled the 9th Circuit and allowed Arizona to minimize the number of African-American and other minorities who could get to the polls to vote.
In dissent, Justice Kagan pointed out that Arizona changes polling places so often that it is no small matter to keep up. Kagan pointed out that Arizona changes polling places precisely in the areas where minorities live and whose votes they are trying to discourage. And she pointed out that Arizona makes minority voters travel further and past closer polling places – much like school assignments to formerly segregated schools. But the majority thought it no big deal to disqualify votes if people voted in the wrong place.
If you’ve traveled in rural-Arizona-Native-American lands, you’ll also appreciate the distance to reach post offices. But the majority thought it no big deal to require people to mail absentee ballots personally.
Those changes would have been blocked before the Court eviscerated the enforcement of the Voting Rights Act. The Voting Rights Act still says that rules, practices or procedures that result in diminishing the ability of minorities to vote are prohibited. But now, the majority doesn’t care about the effect of state changes. Neither their purposes nor effects make any difference. And if African-Americans, Native Americans or other minorities can’t vote, that’s just too bad. The Court’s decision undermines historic legislation designed to end practices which continue to subjugate minorities.
Only Justices Kagan, Sotomayor and Breyer treated all voters as born equal, entitled to vote despite partisan rules demonstrably crafted to keep minority voters from the polls, and diminish the other party’s votes. I strongly recommend reading Justice Kagan’s dissent, particularly part III where she lays out how the Court supported Arizona’s manipulation of the political terrain to favor Republicans on election day.
What do you say of a Court which overruled state power to resolve election disputes in the traditional way – by counting all the votes – when doing so handed the presidential election to the Republican candidate, George Bush, and now turns around and favors Republicans again by overruling federal law that protected the equal right to vote? Beyond hypocritical, they are not calling balls and strikes but trying to call the game itself for their party picks. I had thought some of the Republican appointees would be more high-minded than that. Obviously not.
The Constitution calls the members of the Court “judges.” They prefer to be called “justices.” In a clash famous at the time, Martin Erdmann, a Legal Aid lawyer in New York, once wrote a piece for Life Magazine in which he described a set of state appellate judges as “whores who have become madams.” Erdmann was censured by the judges he attacked. But how do you address the current Supreme Court majority who have abandoned jurisprudence for partisanship? What should we call those who took the oath of adherence to the Constitution but not only place party above law, but for the second time in the court’s disreputable history, try to cancel the results of the Civil War, the Reconstruction Amendments and the Civil Rights Movement? This lawyer is ashamed to have been a member of the bar of their court.
Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.
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