First it was the former head of the NAACP Legal Defense Fund, Sherrilyn Ifill. Then it was New York Times columnist Jamelle Bouie. What are the chances that two important voices would both raise the same argument in reaction to the contention in Justice Sam Alito’s draft Dobbs opinion at the same time out of the blue?
The Supreme Court’s 2013 decision in Shelby County v. Holder removed critical protections of Section 4 of the Voting Rights Act and struck down the preclearance formula of Section 5 of the act, which compelled jurisdictions with a history of voting discrimination to submit proposed electoral changes to a federal authority for approval before enactment. That provision had made the Voting Rights Act the crown jewel of civil rights legislation because it created a regime to head off discriminatory practices before they became law. After striking down the use of the preclearance formula, the Court in Shelby perhaps sought to minimize the damage by reinforcing that Black voters would remain free to challenge discriminatory voting laws after they were enacted by bringing claims under Section 2, which allows Black voters to bring claims to challenge election laws and practices that dilute or deny minority voting strength.
But, Alito might say, if voters do not want their states to ban abortion, they can elect representatives who will then take steps to protect it.
That’s not so simple. Thanks to Alito’s own votes and opinions (and those of his conservative colleagues) in Shelby County v. Holder, Rucho v. Common Cause and Brnovich v. Democratic National Committee, state legislatures have nearly free rein to restrict voting, gerrymander in a hyperpartisan fashion and otherwise insulate themselves from democratic accountability.
It’s true that it’s “not so simple” for proponents of the right to abortion to elect legislators who will enact laws they prefer for a litany of reasons, not the least of which is that this is but one issue of a great many contentious issues, and if electing pro-abortion legislators means electing progressive legislators on a host of social justice issues, there’s a good chance that abortion will not be the foremost issue on voters’ minds.
But this isn’t the beef Ifill or Bouie have with Alito’s somewhat disingenuous argument that by overruling a stable precedent upon which most of the country relies. Rather, this is an effort to bootstrap the Roe reversal into the reinvigoration of the Voting Rights Act, and particularly the restoration of the preclearance component that was rejected by the Supreme Court in Shelby County v. Holder.
For those unfamiliar, Section 5 of the old VRA required states with a history of discrimination in voting to submit their proposed laws to the Department of Justice for pre-approval. On the one hand, it prevented discriminatory laws from first being enacted until they were later stricken. On the other hand, it made state legislators subservient to the determinations of a federal executive branch agency. Between federalism and separation of powers, that was a peculiar path. Should lawyers working at DoJ get to decide what state leges are allowed to do?
But more to the point here is that Alito’s “let them vote” rationale is false because, as Ifill argues, the vote of black women is being suppressed.
Since then, Black women have had to overcome an accelerating and complex array of voter suppression schemes, which have proliferated with alarming speed. Even as the Dobbs draft circulates, the ability of Black and Latina women to vote—and have their votes counted—is in peril as a result of voter suppression laws passed in states including Georgia, Texas, and Florida. Those laws are being challenged by civil rights groups in litigation unlikely to be fully resolved before this year’s midterm congressional and state elections.
The mantra of “voter suppression” has been an effective means of creating the impression that new laws in Georgia that are less restrictive in most ways than old laws in New York suppress the vote of black women because, as Ifill specifically notes, “one section that criminalizes giving water or refreshments to voters standing in line,” which is neither a quite correct characterization nor all that different than in New York. But the core argument is that making it unlawful for partisans to give free stuff to people on line to vote “suppresses” voting?
Voting in an election after 2020 is monumentally easier than voting in an election prior to 2016. We had Election Day. Now we have Election Month. You could only vote absentee for very limited specific reasons. Now you vote by mail, not to mention by box, if you want to. Maybe you can’t have your ballots “harvested” by political party volunteers, but is that suppression? And you don’t even need a stamp to mail it in, which is important since no one under 30 knows where to get a stamp or how to use one.
In other words, there are a number of states — home to tens of millions of Americans — where voters may not actually have the power to elect lawmakers to protect the abortion rights they say they want. If states and state legislatures are supposed to be the places where democracy happens — and that itself is debatable — then these facts are a real challenge for the pro-democracy case against Roe.
Of course they have the power to elect lawmakers to protect abortion, just as they had the power to elect Barack Obama president and 60 Democratic senators. That voting could be made more convenient is always going to be true. After all, why can’t we just vote by phone, or better still, just think of who we want to vote for and it happens without an iota of effort. Isn’t that democracy? Well no, but I digress.
The point is it’s hardly suppression to not facilitate the most extreme ease of voting by making all of the emergency measures put into place during the pandemic permanent. It may well be that these measures are good ideas, that concerns about voter fraud are without basis and that it’s high time to eliminate the brutal effort of physically moving a lever because it’s just too hard and traumatic for some people.
If enough people agree with you, and aren’t otherwise put off by other cockamamie nonsense, make it happen through your vote. Nobody’s suppressing you. If you don’t get your way, it’s because other voters just don’t agree with you. And that’s not suppression either.