To Condone the Suppression of Democratic Votes, the Supreme Court Was Even Willing to Violate the American With Disabilities Act: BuzzFlash Editor's Commentary
November 10, 2020
The Supreme Court (dog97209)
MARK KARLIN, EDITOR OF BUZZFLASH
As much as many Democrats have come to see John Roberts as a “reasonable” conservative, it is important to remember that Roberts — appointed by George W. Bush (Roberts, along with Kavanaugh and Barrett, had worked on helping him win Bush v. Gore) — was the key 5-4 vote in Shelby County v. Holder. That was the 2013 Supreme Court decision that cut the muscle out of the Voting Rights Act of 1965, allowing states and local governmental bodies with records of voter discrimination to proceed with changing voter laws without “pre-clearance” from the Department of Justice.
As the Brennan Center for Justice detailed,
The Voting Rights Act was passed in 1965 to ensure state and local governments do not pass laws or policies that deny American citizens the equal right to vote based on race. On June 25, 2013, the Supreme Court swept away a key provision of this landmark civil rights law in Shelby County v. Holder.
In April 2010, Shelby County, Alabama filed suit asking a federal court in Washington, DC to declare Section 5 of the Voting Rights Act unconstitutional. Section 5 is a key part of the Voting Rights Act, requiring certain jurisdictions with a history of discrimination to submit any proposed changes in voting procedures to the U.S. Department of Justice or a federal district court in D.C. – before it goes into effect – to ensure the change would not harm minority voters. In September 2011, the U.S. District Court for the District of Columbia upheld the constitutionality of Section 5 of the Voting Rights Act, and in May 2012, the U.S. Court of Appeals for the District of Columbia Circuit agreed with the district court that Section 5 was constitutional. Shelby County appealed the ruling to the Supreme Court, and the Supreme Court agreed to take the case in November 2012.
On June 25, 2013, the Supreme Court ruled that the coverage formula in Section 4(b) of the Voting Rights Act — which determines which jurisdictions are covered by Section 5 — is unconstitutional because it is based on an old formula. As a practical matter this means that Section 5 is inoperable until Congress enacts a new coverage formula, which the decision invited Congress to do.
Since then, Republicans in Congress have prevented any law from passing that creates a new “coverage formula.” That is because the GOP knows that voter suppression is vital to allow Republicans to maintain minority white Christian rule as a demographic tide surges toward an increasingly pluralistic society.
Indeed, weeks ago Trump said, with Lindsey Graham echoing him just the other day, that “no Republicans would win again” (paraphrase) if voting by mail continues to expand. However, they have the same perspective on ensuring the survival and expansion of voter suppression tactics that have accelerated in recent years, as the threat of a growing Democratic electorate threatens not only the presidency (Democrats have won the popular vote for president since 1992, with the exception of the 2004 George W. Bush election), but also down-ballot races across the nation.
In a Pennsylvania extended-ballot count lawsuit, justices Alito, Kavanaugh and Gorsuch suggested that the US Constitution might only allow for state legislatures to legislate every detail of election law, not the state government as a whole. This would mean that necessary accommodations could not be made by secretaries of state or even state supreme courts (as was the issue in the Pennsylvania case), as is the case of the Pennsylvania case. Such a radical outlook would give extraordinary advantages to Red State legislatures, particularly in Blue States.
How far will a now 6-3 right-wing Supreme Court be willing to go to condone voter suppression by the GOP? Based on a pre-election case in which SCOTUS confirmed on October 21 that the Alabama Secretary of State could ban curbside voting that would assist people with disabilities in voting and reduce COVID risk for persons with underlying conditions, a 6-3 Supreme Court is prepared to go to voter suppression extremes.
In fact, the Alabama ruling appears to be in clear violation of the Americans With Disabilities Act that was championed and signed by President George Herbert Walker Bush. According to the official government Americans With Disabilities Act website,
Title II covers all activities of State and local governments regardless of the government entity's size or receipt of Federal funding. Title II requires that State and local governments give people with disabilities an equal opportunity to benefit from all of their programs, services, and activities (e.g. public education, employment, transportation, recreation, health care, social services, courts, voting, and town meetings).
However, by a 5-4 vote, the Supreme Court denied accommodation as stipulated under the ADA.
As an October 23 Time article reported,
Jenny Lux didn’t want to risk her life to vote. Her acute respiratory distress syndrome puts her at a high risk for dangerous complications related to COVID-19, compelling her to take quarantine seriously.
So when the 39-year-old read Alabama’s requirements for voting by mail this election cycle, she was stunned. While Alabamians no longer needed to give a reason for requesting a mail-in absentee ballot, they still need to either have their mail ballot notarized or witnessed by two adults simultaneously, as well as include a copy of their photo ID when applying for the ballot. Lux lives alone with her 17-year-old son, and suddenly faced an impossible choice: either risk COVID-19 exposure at a notary service or and allow two adults into her home to witness her ballot.
“My reaction [was], ‘Wow, really? You’re going to do this to me?’”she says. “I just can’t risk it. It’s life and death that we’re talking about here….Why should I jump through all these hoops?”
Lux considered other options, including curbside voting, which many states have adopted this year amid COVID-19. But while Alabama law does not prohibit the service, the state has gone to great lengths to prevent counties from offering it this year. Alabama Secretary of State John Merrill said explicitly that curbside voting would not be allowed under the state’s law. On Oct. 21, the Supreme Court ruled that Alabama’s de facto ban on curbside voting could stand, reversing a lower court’s ruling that the restriction violated the Constitution and the Americans with Disabilities Act. It was the latest instance of a conservative court upholding Republican-backed voting restrictions in the final weeks before Election Day.
For the minority, Justice Sonia Sotomayor dissented,
“If those vulnerable voters wish to vote in person, they must wait inside, for as long as it takes, in a crowd of fellow voters whom Alabama does not require to wear face coverings,” Sotomayor wrote in her dissent, also adopted by Justices Stephen Breyer and Elena Kagan. “The District Court’s modest injunction is a reasonable accommodation, given the short time before the election.”
However, when it comes to enabling Republicans to suppress voting by likely Democrats, the Supreme Court is willing to violate US law, in this case the Americans with Disabilities Act.
With a 6-3 Federalist-society vetted majority, more of such cruel and vote-suppression partisanship judicial decision-making is almost certainly in the offing.
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