It was both astonishing and appalling to watch the transformation of the Republican Party into an anti-democratic party for a decade. It also means that the struggle for the American promise now necessarily dominates our national destiny. The battle lines are decisively drawn.
Last week, in a voting rights case in Arizona, the United States Supreme Court announced that it, too, had chosen sides. As many, including me, feared, the 6-3 majority opted for their bosses, not their duty. Those who still believe in the government of, by and for the people, have become determined outsiders.
In Brnovich v. DNC Judge Samuel Alito, writing for the court, validated some contested voting restrictions in Arizona. More importantly, Alito’s opinion has largely gutted Section 2 of the landmark 1965 Voting Rights Act. Since Chief Justice Roberts and his colleagues rejected the other major piece of the law, the section five preclearance requirement, in the famous Shelby County case in 2013, what many considered the most important civil rights law in American history has remained a hollow and mocking shell. Finally, Lyndon Johnson turns around in his grave.
The ideologically torn Alito gutted the voting rights law without statutory, constitutional, textual or original authority. It was a policy of naked and brutal exclusion. Please stop talking about “conservative” justice. Brnovich is a far-right activist on stilts.
Judge Elena Kagan has issued her most passionate dissent since the Rucho case in North Carolina. She noted that the court had abused its authority “at a dangerous time for the nation’s commitment to equal citizenship”. She explicitly cited the efforts of the North Carolina Legislature, “the day after Shelby, to eliminate same-day registration, ban out-of-compound voting, reduce early voting, including Soul Sunday at the polls “widespread assault on the right to vote. Kagan concluded:
“The law on voting rights is an extraordinary law. Rarely has a statute required so many sacrifices to ensure its adoption. Never has a law done so much to advance the highest ideals of the nation. And few laws are more vital in the present moment. Yet over the past decade this Court has treated no law worse. “
First, Alito’s Opinion is careful to provide generous coverage to the hundreds of Republican voter suppression laws and proposals that are currently sweeping state legislatures across the country. Sounding like a Fox News commentator, Alito wrote that the fear of fraud, even when it never happened, “is a strong state interest” warranting regulation. Even, apparently, when the fear is induced by lawmakers themselves. This tarp covers everything.
Second, if Democrats in Washington do not act immediately to prevent these repressive state restrictions by federal law, they will betray the very voters who elected them and eliminated the greatest presidential threat to American democracy in our history. They will easily be complicit in their own demise and the destruction of the form of government for which centuries of citizens and soldiers have fought and sacrificed themselves. It is odious to lose self-government out of timidity.
Third, even if a strong new federal voting law is passed, there is no reason to believe that Republican Supreme Court supporters will not give him the same treatment as Shelby and Brnovich. A high court committed to thwarting democracy to secure Republican ascendancy is a powerful asset in wars of sedition. It may become essential to reform it.
I know this sounds extreme and alarmist. Unfortunately, this is deadly accurate. Pro-democracy forces don’t have the luxury of being the gentle and civil ones in a fight to the death for the American experience.
Contributing columnist Gene Nichol is the Boyd Tinsley Distinguished Professor of Law at the University of North Carolina.