When the Supreme Court knocked down a core part of the Voting Rights Act in 2013, Chief Justice John G. Roberts Jr. argued that some of the law’s protections against racial discrimination were no longer necessary.
He wrote that the once-troubling turnout gap between white and Black voters in areas with histories of discrimination at the polls had largely disappeared, and that “the conditions that originally justified” the civil rights law’s attention to these places, mostly in the South, no longer existed.
But a new, yearslong study by the Brennan Center for Justice, a nonpartisan think tank focused on democracy and voting rights issues, suggests otherwise.
Before the decision, counties with a history of racial discrimination at the polls were required to obtain permission from the Justice Department before changing voting laws or procedures. This was known as “preclearance” under Section 5 of the Voting Rights Act, and it was the Supreme Court’s 2013 decision in Shelby County v. Holder that effectively killed this part of the law.
Since that decision, the gap in turnout rates between white and nonwhite voters “grew almost twice as quickly in formerly covered jurisdictions as in other parts of the country with similar demographic and socioeconomic profiles,” the Brennan study found.
The “racial turnout gap” refers to the difference in the percentage of eligible white and nonwhite voters who cast a ballot in a given election. This gap is watched closely by voting rights groups and civil rights leaders as an indication of potentially harmful laws or procedures that could have suppressive effects on communities of color.
According to the group’s report, the turnout gap between Black and white voters in those former Section 5 counties has grown by 11 percentage points since the Shelby decision, between 2012 and 2022. The study relied on nearly one billion voter files to estimate that, had the decision never occurred, the white-Black turnout gap would have nevertheless grown, but by just six percentage points.
Though that difference may appear small, the study’s authors contend that such gaps are “potentially huge” in modern politics: Since 2012, at least 62 elections for Senate, governor and president in states with Section 5 counties were decided by under five percentage points.
“Obviously, it matters from a moral standpoint, but it also matters because the margins are significant, particularly given how close elections are around the country,” said Kareem Crayton, the senior director for voting rights and representation at the Brennan Center.
“Republicans Hatched a Secret Assault on the Voting Rights Act in Washington State”
Republican Paul Graves’ work was about to come undone. In the wee hours of Nov. 15, 2021, he and his fellow Republican on Washington state’s independent redistricting commission had finally prevailed on their Democratic counterparts to agree to the maps voters would use in the upcoming election.
But then Latino voters sued the state, claiming the new legislative maps didn’t give them voting power commensurate with their population. Now, Graves worried, a federal judge was about to force the state to give Democratic-leaning Latinos more voting power.
With the balance of power in Washington up for grabs, he launched a covert attack. He consulted powerful state Republicans. He reached out to national Republicans, including the most influential conservative redistricting lawyer in the country, to discuss funding a lawsuit and get strategic advice. He conferred with a Seattle law firm. And he found a Latino congressional hopeful to act as the face of the lawsuit.
A countersuit was filed — against Graves’ own work. This suit made the opposite argument from the Latino group’s. Yes, the map that Graves and his fellow commissioners had created discriminated. But it had disadvantaged white people and other voters.
Sure enough, as Graves had foreseen, in August of last year the judge sided with the Latino plaintiffs. He determined the Yakima Valley map violated the Voting Rights Act, the landmark 1965 civil rights law that has been the bedrock of voting discrimination cases for over half a century. Section 2 of the VRA prohibits the creation of election districts that deprive voters of color of their full rights. The judge said the maps needed to be redrawn.
Having handed Latinos a win, the judge tossed the lawsuit that Graves had helped generate as moot. Undeterred, the legal team of Benancio Garcia, the Latino congressional hopeful, appealed all the way to the U.S. Supreme Court, asking it to block the new maps until it had weighed the merits of his claim. The court declined to take the case earlier this month, and it is unclear whether lawyers will now appeal to the 9th U.S. Circuit Court of Appeals.
Graves told ProPublica he wanted legal action that would slow down the court because he believed the plaintiffs were about to push through “a naked partisan gerrymander.”
“My singular goal, once a lawsuit was filed, was to defend the maps,” he said in a statement. His work is described in sworn depositions and court documents, including emails and other communications introduced as exhibits.
“Colorado votes Tuesday. The Supreme Court hasn’t said if votes for Trump will count.”
No Supreme Court justice seemed eager last month to kick former President Donald Trump off the ballot when they heard Trump’s challenge to the decision in Colorado that he can’t be a candidate.
Their apparent agreement on a highly charged political issue that could have divided the justices along ideological lines suggested a speedy decision on a case that had already been expedited.
Voters are also going to the polls in Maine, another state where Trump’s ballot eligibility is waiting for a ruling from the high court.
And in Illinois, which votes March 19, a judge last Wednesday relied on the same anti-insurrectionist section of the Constitution used by Colorado to declare that Trump cannot be a candidate – a decision the judge immediately put on hold until the Supreme Court acts.
Experts say they’re not surprised by the delay.
“Why Is Trump Getting Special Treatment From the Supreme Court?”
Aziz Huq in Politico:
To understand how truly remarkable it is that the Supreme Court has agreed to consider former President Donald Trump’s demand for absolute immunity from criminal prosecution, it is necessary to have some sense of how the court treats other criminal defendants.
In that light, the court’s extraordinary and improper solicitude for Trump, the person who selected three sitting justices, is all too readily apparent. And the upshot is Trump may now succeed in delaying his federal trial for trying to overturn the 2020 election until after voters go to the polls in November.
In recent years, the Roberts Court has shown greater and greater impatience with criminal defendants’ efforts to forestall punishment — even if the outcome would be cruel, needlessly painful or simply unjustified. The effect of this new hostility to delay is most sharply felt in the death penalty context. But a general hostility to foot-dragging in criminal cases is a through line in the court’s docket.
“Wisconsin Supreme Court rejects move to reconsider state’s congressional maps”
The Wisconsin Supreme Court on Friday rejected a request to reconsider the state’s congressional maps ahead of the next election, ensuring the current district boundaries will remain in place for 2024.
The court’s decision ends a last-minute push from Democrats to change the state’s congressional maps after they successfully signed into law new legislative boundaries last month that weakened Republicans’ grip on the state Legislature.
“This motion comes as no surprise after the court’s new majority telegraphed its willingness to rebalance political power in the state of Wisconsin by overturning Johnson v. Wisconsin Elections Commission,” conservative Justice Rebecca Bradley wrote in the order, referencing the court’s previous decision on the maps.
“While the court rightfully denies this motion,” she added, “it likely won’t be long until the new majority flexes its political power again to advance a partisan agenda despite the damage inflicted on the independence and integrity of the court.”
Newly elected liberal Supreme Court Justice Janet Protasiewicz did not participate in a vote on the motion, writing Friday that she was not seated on the court when the underlying case was decided. Chief Justice Annette Ziegler joined Bradley in her concurring opinion rejecting the request to consider new maps.
You can find the order here (via Democracy Docket).
“‘The Primary Problem’: How hyperpartisan minorities hijacked elections”
I highly recommend listening to Chuck Todd’s podcast with Nick Troiano. They discuss Nick’s important new book “The Primary Solution,” and among other valuable points Nick makes is that the current system of partisan primaries is actually hurting political parties, which would benefit from a system in which all candidates from all parties competed against each other, and the parties separately could endorse whichever candidate they wanted.
“Menendez Ally Pleads Guilty in Bribery Case and Agrees to Cooperate”
NYT:
Jose Uribe, a former New Jersey insurance broker charged in what prosecutors have described as a broad bribery scheme involving Senator Robert Menendez, pleaded guilty on Friday in Manhattan.
Mr. Uribe had been accused of providing Nadine Menendez, the… Continue reading
“Democrats Blew Their Big Opportunity to Make New York Winnable in 2024”
Alexander Sammon for Slate:
After over a year in court, millions of dollars on lawyers’ fees, an overhaul of the state’s highest court, and an all-out battle to throw out New York’s congressional districts and replace them with something… Continue reading
“Has Citizens United Undermined Democracy?”
WNYC “Intellingence Squared” podcast:
In a high-stakes presidential election year, in partnership with the Newt and Jo Minow Debate Series at the Northwestern Pritzker School of Law, Open to Debate is taking a look at more than a decade… Continue reading
Federal Court Strikes Down Some, Upholds Other, Parts of Arizona Laws Requiring Proof of Citizenship to Register to Vote in State Elections and for State to Investigate Possible Noncitizen Registration
This is a complex ruling in a long-running case. (Via AZ Law).
From the conclusion of the 109-page opinion:
Non-US Plaintiffs may enforce § 10101 of the Civil Rights Act. Requiring individuals who register to vote using the State… Continue reading
“Haley rules out a No Labels bid for president”
“Waiting on Supreme Court, States Go It Alone in Trump Ballot Cases”
NYT:
When the U.S. Supreme Court agreed in January to hear an appeal of a Colorado ruling that disqualified former President Donald J. Trump from that state’s primary ballot, many thought the court would soon resolve the issue for… Continue reading
Ed Whelan is Right
From the “words I never expected to write” department, this observation seems spot on and it should have occurred to me when I read the Court’s order setting the Trump immunity case for a hearing (via Jonathan Adler):
UPDATE: … Continue reading
“Pace of Supreme Court Immunity Case Shadowed by Looming Election”
Adam Liptak for the NYT:
“There comes a point,” Justice Felix Frankfurter wrote in 1949, “where this court should not be ignorant as judges of what we know as men.”
The Supreme Court’s decision on Wednesday to schedule arguments… Continue reading