When deploying the broad principles of laws and constitution the judges on the Supreme Court are convinced that they are guided by principle. But principles are afforded different weight.
On the last day of its term the court's conservative majority demonstrated that with particular clarity. The net result was a decision that reduced the number of minority voters, and another that shielded from disclosure wealthy contributors to advocacy organizations. A partisan result achieved in the neutral language of the law.
In a voting rights case the court decided that burdens placed on voting in the name of ballot security required no proof that there is a present threat. Burdens that fall on voters, even if racially disparate, are no problems if they are "mere inconveniences" or if intervention would burden the states - to which Constitution assigns the principal right to organize elections.
Although most Americans would readily affirm the right to vote as at the heart of democracy (that's how we chose class presidents) that's not the way the court or Constitution see it. In 1789 the national government formed but slaveholding states in particular wanted to keep in that way. So they gave white men a bonus - 3/5 of every slave was added to the state's census population so that slave-holding states would be disproportionately represented in the House of Representatives. There was then, of course, no national right to vote. Nor is there now. It is left primarily to the states.
That changed after history's then bloodiest war when the post Civil War 13th Amendment made every African American count as a full person for apportionment. But every Black vote suppressed was a step to restoring the white male advantage. The fewer Black votes the more each white vote counted. The 15th Amendment did not create a national right to vote, but it did bar discrimination on the basis of race and against the formerly enslaved. Later the 19th Amendment would extend the franchise to women, though of course, it was white women who principally benefited since Black women and other minorities - Hispanic, Indian, and Asian were the victims of discrimination.
The United States Supreme Court was worse than useless in fighting for the right to vote. So long as a burden was facially neutral it stood, though in 1944 the Supreme Court finally blocked the "white primary" system. But few Black people were able to vote until three epochal moves - the Voting Rights Act of 1965, the 24th Amendment eliminating the poll tax (later applied to the states) , and the 26th Amendment (lowering the voting age to 18).
One might think that this history would lead to a Supreme Court opinion placing the right to vote at the center of our constitutional protections. But no, not in Brnovich v. Democratic National Committee. There the Supreme Court by a 6-3 vote decided that "mere inconveniences" do not impermissibly burden the right to vote. Thus reduced mail ballots, limits on time, place, and manner (fewer polling places, no drop boxes, no Sundays, no delivering groups of ballots) even if likely to reduce the number of Black, Latin, poor, or elderly people who vote will pass muster. Unless, of course, discriminatory intent is manifest - but the post-Reconstruction legislators learned to evade that by tricks like `grandfather clauses' and literacy tests. The court - in an opinion by Samuel Alito - achieved what John Roberts had attempted in 1982 when working in the Reagan administration - blocking the "effects" test.
In the Arizona case - Brnovich - the state's asserted interest in preventing election fraud was sufficient - even without any evidence that such abuses have occurred. Maximizing voting opportunities does not appear among the values the Supreme Court listed as factors for judges to consider in reviewing challenges to restrictive state voting laws. States have rights too.
The contrast in the right of people to anonymously speak by donating large amounts of money to advocacy groups is dramatic. As Antonin Scalia said in McConnell v. FEC (2003) there is a "First Amendment
right to spend money for speech". Money talks, it Is speech. So in Americans for Prosperity Foundation v. Bonta, Attorney General John Roberts, writing for the court, struck a California law compelling disclosure of major donors. Such laws burden speech and are subject to "exacting scrutiny"
The contrast is dramatic: voting can be subject to "time, place and manner" restrictions, mere inconveniences are OK, and hypothetical evils will weigh against actual burdens - favoring the state's asserted interests. But wealthy donors spending money for advocacy "charities" need not show that there is any reason for them to fear disclosure. The idea of "exacting scrutiny" as protection against compelled disclosure is derived from the 1958 case NAACP v. Alabama. As John Roberts acknowledged that was a case of "chilling effect in its starkest form" - a time of massive resistance to the courts' desegregation orders. No such fear could be demonstrated by AFP donors, yet the rule was mechanically applied in favor of wealthy donors in language that threatens many state and federal laws on disclosure of election contributions.
The Court's six member conservative majority has, thus, effectively repudiated the majority in McConnell v. FEC who began
More than a century ago the sober-minded Elihu Rootî advocated legislation that would prohibit political contributions by corporations in order to prevent the great aggregations of wealth, from using their corporate funds, directly or indirectly, to elect legislators who would vote for their protection and the advancement of their interests as against those of the public.
Election law expert Richard Hasen elaborates. - GWC
By Richard L. Hasen (UC Irvine)
In two disturbing rulings closing out the Supreme Court’s term, the court’s six-justice conservative majority, over the loud protests of its three-liberal minority, has shown itself hostile to American democracy.
In one case, Brnovich v. Democratic National Committee, the court has weakened the last remaining legal tool for protecting minority voters in federal courts from a new wave of legislation seeking to suppress the vote that is emanating from Republican-controlled states. In the other, Americans for Prosperity v. Bonta, the court has laid the groundwork for lower courts to strike down campaign finance disclosure laws and laws that limit campaign contributions to federal, state and local candidates.
The court is putting our democratic form of government at risk not only in these two decisions but in its overall course over the past few decades.
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