The U.S. Supreme Court recently issued three surprise rulings which could ease voter suppression but much more remains to be done to fully restore the franchise to African Americans. That was evident in another ruling in which the court refused to restore voting rights to ex-felons.
On June 8, conservatives Chief Justice John Roberts and Justice Brett M. Kavanaugh joined liberals Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor in rejecting Alabama’s racially gerrymandered electoral map. The redistricting, which followed the 2020 Census, gives Republicans six of the seven congressional districts, leaving only one for African Americans, who comprise nearly 27 percent of the population. Justices Samuel A. Alito Jr., Amy Coney Barrett, Neil M. Gorsuch and Clarence Thomas dissented. Thomas, one of two African Americans on the court, the other being Jackson, felt it necessary to write a 50-page opinion as to why more people who look like him should not get a fair chance to go to Congress.
The Alabama Legislature must now redraw its map to include two districts in which African American voters will “have the opportunity to elect representatives of their choice,” The New York Times reported.
In a similar case from Louisiana which the Justices kept on hold for almost a year while they considered the Alabama appeal, they ruled, with no dissent, that the federal court in New Orleans should review the state’s congressional map before the 2024 elections, The Times reported. That map also was drawn after the 2020 Census, by which time the African American population had risen by 3.8 percent to 32 percent of the state, while the number of European Americans decreased by 6.3 percent to 61 percent. As in Alabama, that map created only one majority African American district. The Republican super-majority in the Legislature overrode Democratic Gov. John Bel Edwards’ veto.
The U.S. Court of Appeals for the Fifth Circuit, which will hear the Louisiana case, has “a conservative reputation,” The Times noted, meaning it could still approve the gerrymandered map. But if the changes are made in Alabama and Louisiana, they “could reverberate nationally and boost Democratic chances of reclaiming control of the narrowly divided [U.S.] House [of Representatives],” The Times said. States likely to be affected include Florida, where Gov. Ron DeSantis rejected two consecutive maps which the Legislature sent to him and signed off on one which he drew that reduced the number of African American-majority electoral districts.
Even more nationally signiﬁcant, on June 27 the Supreme Court rejected the so-called independent state legislative theory (ISLT) in a case in which North Carolina argued that the U.S. Constitution empowers Legislatures to set the rules for elections “even if they result in extreme partisan voting maps and violate voter protections enshrined in state constitutions,” The Washington Post reported.
The Legislature’s supremacy argument is based on “a strict reading of the Constitution’s elections clause, which says, ‘The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof,’” The Post said.
“If the ruling had gone the other way, the case could have had a major influence on results in the 2024 election,” The Post added, because, among other things, “the mid-terms showed that control of Congress can depend on the drawing of congressional district lines.”
The ISLT case was decided 6-3, with Alito, Neil M. Gorsuch and Thomas dissenting.
But, on June 26, the court refused to take up a case involving Mississippi’s Jim Crow-era permanent disenfranchisement of former felons entrenched in the state constitution, the Associated Press reported.
Jackson noted in a written dissent that the drafters of the Mississippi Constitution in 1890 “made clear that they intended to exclude Black people by removing voting rights for felony convictions in crimes they thought Black people were more likely to commit, including forgery, arson and bigamy.”
According to Reuters, “The state’s felon disenfranchisement policy has been shown to have a disproportionate impact on Black Mississippians, nearly 29,000 of whom were disenfranchised between 1994 and 2017, according to court ﬁlings. Black Mississippians account for 36 percent of the state’s voting age population but 59 percent of those who have been disfranchised for life due to a felony conviction.”
The Sentencing Project has noted that about 4.6 million ex-felons have been disenfranchised nationally or about two percent of the voting-age population. They include more than 10 percent of African Americans in Alabama, Arizona, Florida, Kentucky, Mississippi, South Dakota, Tennessee and Virginia.
“Florida remains the nation’s disenfranchisement leader in absolute numbers, with over 1.1 million people currently banned from voting, often because they cannot afford to pay court-ordered monetary sanctions,” The Sentencing Project said. “An estimated 934,500 Floridians who have completed their sentences remain disenfranchised, despite a 2018 ballot referendum that promised to restore their voting rights.”
And, 10 years ago, on June 25, 2013, the court invalidated Section 5 of the Voting Rights Act of 1965, the landmark legislation intended to ﬁnally and fully enfranchise African Americans 100 years after the abolition of slavery. That provision had required nine states – including Alabama, Louisiana and Mississippi — and certain jurisdictions in seven others with a history of voter suppression to obtain pre-approval from the Justice Department’s civil rights division or the D.C. federal court for any proposed changes to their voting laws. Five Florida counties were added to the list on Nov. 1, 1972: Collier, Hardee, Hendry, Hillsborough and Monroe.
Scuttling Section 5 allowed for the resumption of election manipulation especially in states dominated by Republicans, which, despite their relatively small populations, resumed playing an outsized role in electing members of Congress and the President.
Alito, the late Anthony Kennedy, Roberts, Scalia and Thomas ruled against Section 5. The late Ruth Bader Ginsburg wrote the minority opinion, which was joined by former Justice Stephen Breyer, Kagan and Sotomayor.
It is important to reiterate as often as possible that the Republican Party’s dream has been to co-opt the voting system and manipulate it to maintain European American supremacy indefinitely and to preserve capitalism’s stranglehold on the country by diluting the growing political power of non-European Americans. People such as billionaire Charles Koch and hard-right ideologues like the late James McGill Buchanan were determined, as Nancy McLean put it in her book “Democracy in Chains," to “save capitalism from democracy.” More recently, German American billionaire venture capitalist Peter Thiel enlisted in that cause, stating, "I no longer believe that freedom and democracy are compatible."
Barack Obama’s two terms as president showed that, despite Republican machinations, Democrats could still win the White House and was a wakeup call for the Republicans Party which responded by drafting a blueprint to widen its base of support. Donald J. Trump’s arrival on the political scene and the birth of the Make America Great Again (MAGA) cult that developed around him during his presidency led the Republican Party to abandon its big-tent plan and ushered in politicians and advisors with no qualms about resuming manipulating the electoral system. It also allowed Trump to appoint Barrett, Gorsuch and Kavanagh, in concert with then Senate Majority Leader Mitch McConnell, to make for the 6-3 conservative majority. They are now pretending to be historians, as some analysts have noted, as they interpret the Constitution in the 21st Century on the basis of “originalism” — what the drafters intended when they wrote it 235 years ago.
They have ruled against abortion and afﬁrmative action and have given businesses permission to discriminate against LGBTQ Americans. Using what President Franklin D. Roosevelt said, in another context, the “horse and buggy” theory of interpreting the Constitution, they will come next for the 1954 ruling that banned racial segregation in public schools. They will also invalidate Social Security and Medicaid as part of a conservative legal binge similar to that of the mid-1930s against Roosevelt’s progressive agenda.