Can we end the Supreme Court's assault on voting rights? This legal scholar says there's hope

Joshua Douglas is an optimistic guy. He's a law professor at the University of Kentucky, where he teaches election law and voting rights. While the country as whole has been wracked by a wave of anti-voting rights legislation in the wake of the 2020 election and the Jan. 6 insurrection, Kentucky managed to pass a new bipartisan law that both expanded voting rights and addressed Republicans' supposed security concerns. So Douglas, who is acutely aware of how recent Supreme Court decisions have eroded voting rights and democracy itself, wanted to write a book about reversing that erosion, proposing a “grand election compromise” that would both strengthen democracy and reform the court in ways both Democrats and Republicans could support.

“That's great, I love it. That's your conclusion,” Douglas says his agent told him. He and others who follow the courts closely already know that the Supreme Court has been terrible on voting rights, but the general public still wants to imagine the high court as a defender of rights. So Douglas needed to explain the problem, his agent said, before providing the solution. So was born “The Court v. The Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights.”

Each chapter focuses on a case in which the Supreme Court has eroded voter rights in some way. Where two or more cases have eroded rights in similar ways, those are presented in order, offering a grand overview of how the court has undermined democracy. Some are well known and infamous decisions, like Citizens United and Bush v. Gore, and others are well known to voting-rights activists, such as Shelby County v. Holder. Others are more obscure, but they all played a role in bringing us where we are today, with individual voting rights dramatically diminished from a high point under Chief Justice Earl Warren's court during the 1960s. Yet Douglas' book is anything but a dry, analytical legal brief. The stories of individuals involved in these cases feature prominently in each chapter, bringing the issues vividly alive. I recently spoke with Douglas via Zoom. This transcript has been edited for clarity and length.

Your first three chapters describe a trio of cases that eroded the protections that voting rights had gained with the Warren court — what is known as “strict scrutiny.” How did that begin with Anderson v. Celebrezze, a case out of the 1980 election? 

The book has some cases that many people have heard of, but others that no one's heard of are perhaps more important for voting rights. Anderson is one of these. This case involved John Anderson's run for president as an independent in the 1980 election. He was too late to get on the ballot and so he sued in five states, including Ohio, which went up to the Supreme Court.

I put this in Chapter 1 because it falls back on that "strict scrutiny" test, as you mentioned. Previously, in the 1960s, the court had robustly protected the right to vote by scrutinizing state laws, making states prove the need for a particular law that impacted voters. Anderson is the case that begins to pull back on that, where instead of saying to the state, “Give us a good enough reason and that's what we're going to test,” now the court says, “We're going to balance the rights of voters and the burdens they face with the state's need to regulate its election.” This case is the first in which you start seeing the court methodically giving states greater rights and providing less scrutiny on states.

The second case, Burdick v. Takushi, had to do with write-in voting. What happened there? How did it make matters worse? 

This is one of the most interesting cases in the book, to me. It deals with Alan Burdick, who wanted to write in a candidate in Hawaii. He was unsatisfied with the candidates for state representative and he wasn't allowed to cast a write-in vote. He said, “I want to write in” and the poll worker said, “Well you can't. The machines won't allow it.” He half-joked that he didn't know if it was the actual voting machines that wouldn't allow a write-in vote, or the political machine that was trying to make sure that there was no dissent outside their established candidates.

It's also interesting in that this was not cause litigation, like you see in a lot of voting rights cases. This is just a guy who was upset that he couldn't write in a candidate, so he sued. What he told me was that write-in voting is an important outlet for voters who don't like the chosen candidates selected by the parties. So not allowing him to write in a candidate, he felt like, took away his right to vote.

The court, however, rejected his lawsuit and in doing so furthered that test from Anderson that gives states more leeway to regulate their elections as they want. The Warren court had said states must prove why they needed a law that impacts voters. The combination of Anderson and Burdick meant a state can say things like, “Well, we want to have good election administration,” or “We’re worried about election integrity,” and in Burdick the court basically said, “We're going to give the state credit for just saying they want easy election administration, without scrutinizing whether that's a valid concern in this situation and whether the law actually achieves that goal.”

The third case, Crawford v. Marion County Election Board, had to do with voter ID, which was justified as protecting against voter fraud — something for which there was no evidence. How did it build on Anderson and Burdick?

Here you not only had the court applying this balancing test, but the thumb started getting pushed even further on the side of states. Before, the voter could say, “Look, this law is denying my right to vote,” and the state would have to provide evidence to show either that it wasn't denying the right to vote or that there was a good enough reason. After Crawford, the voter has to provide a ton of evidence about the ways the law impacts the right to vote, and the state has to provide no evidence whatsoever that there's actual fraud it's trying to prevent.

So the Crawford case completes the trilogy, after Anderson and Burdick, by placing the thumb even more firmly on the side of states, and deferring to states in how they conduct their elections, which in fact is the last thing we should do. If there's any area in which we should trust politicians the least, it's on voting rights.

Next you deal with felon disenfranchisement in a 1974 case, Richardson v. Ramirez. You explain that the Warren court strengthened the right to vote based on the 14th Amendment, but voter disenfranchisement was also rooted in the 14th Amendment. How did that unfold and how is it mistaken?

This is a question I get all time. Why are states allowed to disenfranchise individuals who have been convicted of a felony when the Constitution protects the right to vote? The answer is this Richardson case from 1974. This was cause litigation, unlike Burdick. Some California lawyers were looking for plaintiffs to challenge California's voting rules, and Ramirez was a good example. He had gotten into a bar fight in Texas 15 or 20 years prior and had a conviction, but had served his sentence and was living a happy life. He moved to California, he was a farmworker with a wife and kids, and he heard about this lawsuit.

What's interesting to me about this case is that once it got to the Supreme Court, the case completely changed. The case was litigated as a right-to-vote case: Is there a right to vote in the Constitution, and does this felony disenfranchisement law infringe upon it? It gets to the Supreme Court and the case totally changes to: Does the Constitution also allow felony disenfranchisement, through this forgotten clause in Section 2 of the 14th Amendment, known as the "reduction in representation clause"?

Without getting too much into the legal weeds, the big takeaway is that the court says that this tiny little phrase in Section 2 of the 14th Amendment allows felon disenfranchisement, even though that phrase was intended to ensure that the former Confederate states could not deny the right to vote to newly freed slaves. This was never intended to allow a lifetime ban on individuals with a felony conviction. If you just looked at the history of the 14th Amendment, the court twists it and applies it in a way that was never intended, and says, yes, the 14th Amendment, Section 1, includes a right to vote through the equal protection clause, but that's taken away for some people by Section 2.

Citizens United is well known, but it's less well known that it overturned past precedents as recent as seven years earlier. How did it change the court's approach to campaign finance, how was it justified and what did the court ignore or dismiss in the process?

I write about Citizens United not only as a campaign finance case but also as a voting rights case. In terms of the law, it overturned a case called McConnell v. FEC from 2003. But the legal change is our understanding of corruption, and the court's understanding of corruption. In Citizens United, the court narrowly defined corruption as quid pro quo: I give a sum of money to a candidate directly, and the candidate is then going to do my bidding. The court said that's the only kind of corruption that the government can prohibit, instead of the broader and, I think, better understanding of corruption: I'm going to do something for you, but maybe not give you money directly, and I expect you to do something for me when you're in office. And the thing I'm doing for you that's indirect is that I'm spending my own money on my own campaign, trying to support your candidacy.

So that's the campaign finance side. My focus is on the voters, in that it skews democracy by giving wealthy interests the loudest voices. That makes it harder for voters to understand what the politician's message actually is, and makes it harder for voters' voices to be the loudest.

Next you deal with the notorious Bush v. Gore decision that decided the 2000 election, which explicitly said it was only applicable to that one case. You argue that it had profound harmful effects that continue to this day, even contributing to the Jan. 6 insurrection. So explain that argument. I think it's powerful and might surprise some people.

Although the court said that case was good for one time only, the politicians haven't thought so and lower courts haven't thought so either. It's been cited a bunch by the lower courts. Politicians haven't thought so because, essentially, any time there's a close election now, politicians think they can just challenge it. In the chapter I go through, basically, that in every four-year cycle there have been post-election challenges. In 2004, it was the governor's race in Washington state, and in 2008 it was the U.S. Senate election in Minnesota. Those elections came down to a few hundred votes out of millions, so it makes sense that there were recounts. But there's a sentiment now that an election is never really over on election night, or when the results are certified a few weeks later.

This was exploited to very harmful effect by Donald Trump and his supporters, because that was not a close election in 2020, and yet they filed dozens of lawsuits all around the country to try to challenge aspects of the election results. And they can look at Bush v. Gore and say, well, you know, Al Gore challenged the election results in Florida in 2000. So it's contributed to this idea that post-election litigation can be a routine part of a campaign, or at least planning for it is something that every campaign does — and that the courts are an important part of the decision-making process when it comes to elections. That's dangerous because even when an election is not close, like 2020, you whip up your supporters to think it is, and you see what happened on Jan. 6.

After Bush v. Gore, the next two chapters deal with cases undermining voting rights. The first is Shelby County vs. Holder. What did the courts do in that case, and why was it so consequential?

This case involves Section 5 of the Voting Rights Act, which is this pre-clearance mechanism, this idea that certain states with a history of discrimination on the basis of race in voting had to seek what was known as pre-clearance before enacting any voting changes. Basically, Congress said, "We can’t trust you to pass laws that won't discriminate, so we need a mechanism to make sure that the laws you pass aren't going to have a discriminatory effect."

The court had upheld this pre-clearance mechanism four times, and yet Shelby County overturned it. It overturned not the pre-clearance idea itself but the coverage formula Congress had created to decide which jurisdictions were subject to this process. Everyone knew that by ruling that section — Section 4(b), the coverage formula — unconstitutional, it would kill off Section 5, which was pre-clearance.

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The reason that is so controversial or so wrong is epitomized by Justice Ruth Bader Ginsburg's quote in her dissent, which I use for the chapter title, which is that taking away the pre-clearance mechanism because it's working so well — which was true; studies showed that these places were no longer passing egregious, discriminatory voting laws — was like throwing away your umbrella during a rainstorm because you're not getting wet. I think she was right. In the 10 or 11 years since Shelby County came down, you can see a retrenchment in voting rights in various areas. A recent study looked at the turnout gap in previously covered jurisdictions and showed that minority individuals are turning out at a lower rate, as compared to white individuals, in those 10 years. So it's concerning because of the retrenchment it caused on minority voting rights.

Following that was Brnovich v. DNC — and in that case, you write, Justice Samuel Alito "made up the law.” What happened there, and what do you mean by that?

This is a case involving two Arizona laws that the plaintiffs argued hurt voters. One was about who could deliver someone's ballot, letting groups or individuals collect ballots to deliver, and the other involved what happens if you show up at the wrong precinct to vote, basically saying that any vote cast there will not count. The plaintiffs showed that these laws had some disproportionate effect on minority voters, particularly the ballot collection ban, which harmed Native American voters. So this was challenged under Section 2 of the Voting Rights Act, which says you can't have any laws that have an effect of racial discrimination.

The court rejected the challenge under Section 2, but doesn't just throw out the plaintiff's lawsuit. It creates a whole new test for how to use Section 2 on a vote-denial case — laws that make it harder for people to cast their ballot. And as I say, Alito made up the law, creating what he calls five guideposts that plaintiffs must satisfy to bring a successful claim under Section 2 of the Voting Rights Act. These guideposts come out of thin air: There's no citations for them, and every single one of them will make it harder for plaintiffs to bring a successful case. Talk about judicial activism! This is not in the statutes, it's not in the legislative history. Alito just thinks these are good guideposts for plaintiffs to have to prove, so he creates them. Every single one lessens the protection of Section 2 of the Voting Rights Act by making it harder for plaintiffs.

Your next two chapters deal with gerrymandering. Only the first chapter title is tied to a particular case, Rucho v. Common Cause. What happened in that case and why was it significant?

Here you have two cases, one from North Carolina, and one from Maryland. One is Republicans severely gerrymandering the North Carolina map, while in the other, Democrats severely gerrymandered a district in Maryland. The lawyers brought claims under the 14th Amendment's equal protection clause. They brought First Amendment claims, they brought claims attacking the map statewide, they brought claims attacking just one district. They basically tried to give the court every possibility to rule that there's got to be some check from the courts on politicians drawing maps to help keep themselves in power.

The court rejected all of that, and said that federal courts are not in the business of policing partisan gerrymandering — that it's up to the voters, essentially, to vote the bums out. Of course it makes it a lot harder to vote the bums out if the bums are drawing district lines to insulate themselves in power. The common phrase is that the politicians are choosing their voters, not the other way around.

The court had grappled with this question for decades in a handful of different cases in which it tried out different tests to police partisan gerrymandering, and we basically had the best test that the courts had seen. Numerous lower federal court judges had applied this test to root out the worst abuses, not to question most maps but the extreme outliers — the North Carolina example was really an extreme outlier — and the court rejected it. What does that do? It lets the politicians run wild in drawing maps however they want, knowing that there will not be judicial oversight, at least not from the federal courts.

Your next chapter is called “The Next Looming Case.” What are you dealing with there?

That chapter is mostly about the Moore v. Harper case from last year, involving the so-called independent state legislature doctrine. It connects to both Bush v. Gore and Rucho, in that it's also about North Carolina gerrymandering. Here, the state's top court had used the state constitution to strike down the map. It ties back to Bush v. Gore because the independent state legislature theory, which basically holds that federal courts can overturn state court rulings on state constitutions, ties back to Chief Justice Rehnquist's separate opinion in Bush v. Gore.

It's a very fringe theory. A lot of people thought the court would run with it and say, “Yes, we have the power to overrule state courts even when it comes to state constitutions.” Normally you'd say the state's highest court has the final say, just like the U.S. Supreme Court is the final say on the U.S. Constitution. The court surprised a lot of people by rejecting the most robust use of this theory, but also said there might be situations when a state court goes too far that we do want to question. So it gave itself more power, but didn't say when it might use that power. It just said there might be an egregious example “when a state court transgresses the bounds of ordinary judicial review.” But the court didn't say what that means. The court will get to decide.

To me, the next looming case is when a state court protects voting rights, and someone challenges it and brings it to the U.S. Supreme Court. Is it going to be a situation where the court says, “Well, this is one where we want to scrutinize what the state courts have done”? We don't have a case that has done this yet. This is a good example of a theme throughout the book: The court will plant a seed in one case, let that seed blossom into a deadly weed in a future case and then say, “Well, we're just following precedent,” and cite the previous case. I think the Moore v. Harper case is one where the seed is potentially planted.

You’ve just outlined all these judicial horrors undermining voters’ rights, but in your conclusion you turn optimistic. You think we can fix this. So what do you advise?

I'm an optimistic person by nature, I have a new podcast and radio show called “Democracy Optimist.” My first book, “Vote for Us,” was an optimistic book. I didn't want to leave the reader with all these negative connotations. We can either lament how the Supreme Court is undermining voting rights and throw up our hands, or we can think about ways to fix it. So I point to a handful. One is, let's try to avoid the court altogether by coming up with bipartisan solutions, which is something we've done here in Kentucky to some success. It's not going to work in every place and certainly not going to work in some of the most contentious swing states. But perhaps we can get to some reasonable solutions where we can avoid the court.

But beyond that, we do need institutional reform at the Supreme Court. I'm not a fan of court-packing, because I think that leads to a political tit-for-tat, so I don't think that's a smart idea. Instead, I think we could look at what the federal courts of appeals do, and have the justices sit in randomly selected panels. We can impose 18-year term limits on the justices so that there's a regular rotation. Every four-year presidential term gets two nominations. I think we could have district court and court of appeals judges sit by designation on the Supreme Court. The goal here is to lower the temperature of Supreme Court nominations, make it less important which individuals get on the court or when they decide to retire or when they die. And therefore get the focus back on the rule of law and less on the identity of justices on the court.