“Trump’s New Supreme Court Is Coming for the Next Dozen Elections”

I have written this piece for New York. It begins:

When Judge Amy Coney Barrett sits for questions before the Senate Judiciary Committee in mid-October, no doubt Democrats will pepper her with questions about whether she would recuse herself in any Trump v. Biden election lawsuit to come before the Supreme Court. Although that’s an important question to ask, perhaps the bigger question is what it wouldmean in the long run for voting and election cases to have a sixth conservative justiceon the Supreme Court.

In short, a Barrett confirmation would make it more likely we will see a significant undermining of the already weakened Voting Rights Act — the Court said on Friday it will hear a case involving the law. A 6-3 conservative Court might allow unlimited undisclosed money in political campaigns; give more latitude to states to suppress votes, especially those of minorities; protect partisan gerrymandering from reform efforts; and strengthen the representation of rural white areas, which would favor Republicans….

We don’t know much yet about Barrett’s views in voting cases since she joined the bench in 2017. Her writings in this area are scant. She wrote an unremarkable opinion in a ballot-access case (joined by a Democratic colleague) rejecting a minor-party candidate’s attempt to get on the ballot. She has not weighed in as a judge in a campaign-finance case. In a law-review article, she pointed to Justice Scalia’s willingness to abide by some precedent he thought was wrong giving Congress stronger power to combat racial discrimination in the Voting Rights Act. By all indications, Barrett is a judge who would approach such questions openly and honestly. But she’s also a deeply conservative judge who is, like Scalia, committed to principles of originalism and textualism, so she’s likely to side with other conservatives as these issues come to the Court — on everything from gerrymandering to restrictive voting laws to money in politics. I made the same point about Justices Gorsuch and Kavanaugh being reliable conservative votes in these cases before they joined the Court, and the predictions turned out to be correct.

The Court could perhaps soon reverse its decision in the 2015 Arizona case, which would reempower politicians to draw their own congressional districts even if voters want nonpartisan redistricting commissions to do it. Roberts wrote a bitter dissent for conservative justices in this case, and if the Court is willing to revisit recent precedent, he almost certainly would have a majority on this issue.

On Friday, the Court said that next year it would take up another case from Arizona that concerns the Voting Rights Act. An appeals court held that the state engaged in intentionally discriminatory conduct against minority voters by limiting the ability to collect absentee ballots, which were a tool, especially on Native American reservations, to get out the vote. A finding of intentional discrimination would open up Arizona to further federal oversight of its elections under the Voting Rights Act, and my sense is that the Court took the case to reverse the appeals court’s holding….

The Court could also make things much worse when it comes to campaign financing.Senator Mitch McConnell and others have already been pushing cases that would allow individuals and corporations to make unlimited campaign contributions directly to candidates. And some justices believe that those making contributions or expenditures in campaigns have a constitutional right to total anonymity from the public. This would make our political system much more prone to corruption, deprive voters of valuable information, and let the rich have even greater influence over election officials than they do now.


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