Justice Roberts neglects his own role in tilting American democracy

Like many of us, Supreme Court Chief Justice John Roberts is concerned about the state of American democracy.

In a thoughtful year-end message, Roberts wrote that “we have come to take democracy for granted.” He pointed a finger at social media, fretting that Facebook, Twitter and other platforms “can instantly spread rumor and false information on a grand scale,” and that “the public’s need to understand our government, and the protections it provides, is ever more vital.”

It’s good to welcome the chief justice to this fight, especially since his court’s decisions on partisan gerrymandering, Citizens United and money in politics, voter purges and the Voting Rights Act have done so much to weaken democracy and create this dangerous moment of civic decay, unequal access to the ballot box and, perhaps most frightfully, entrenched minority rule.

Roberts didn’t mention his own role in tilting American democracy so radically toward the wealthy and against the very notion of one person, one vote. His fingerprints are everywhere.

Start with the chief justice’s 2013 decision in Shelby County v. Holder, which hollowed out the crucial enforcement mechanisms known as “preclearance” from section 5 of the Voting Rights Act. The law appropriately had required states and localities with a history of racial discrimination with their voting procedures to have any new election laws reviewed by the Department of Justice prior to enactment.

Roberts, however, found that while those extra steps might have been necessary in 1965, those race-based barriers to the polls not only had been removed, and that pre-clearance itself was therefore based on what he called “eradicated practices.” Racial disparities and literacy tests were a thing of the past, Roberts ruled, ignoring deep disparities across the South and these then-protected communities, a fine example of a justice blind. “There is no longer such a disparity,” he wrote, putting an end to the very provision that created the conditions he heralded.

It turns out, predictably, that these practices were such a thing of the past that within 24 hours of the court’s 5-4 decision, Texas announced that it would enforce one of the nation’s most restrictive voter ID laws. Mississippi and Alabama, both previously covered by preclearance, quickly followed that lead.

Then the floodgates truly opened. Weeks after the court’s decision, North Carolina implemented an entire menu of new voting restrictions that began with a stringent photo ID requirement but went much further, limiting early voting and pre-registration, and putting an end to same-day voter registration and even some voter registration drives. A federal judge later ruled that the N.C. laws targeted black voters with “surgical precision,” and that legislative staff researched the forms of ID least likely to be held by blacks and intentionally tailored the law to require them. The “eradicated practices” were alive and well.

In 2018, Roberts joined a 5-4 majority decision written by Justice Samuel Alito that let stand Ohio’s restrictive voter purges, then the nation’s most aggressive. “Use it or lose it,” is Ohio’s mantra: If a citizen fails to return a postcard — criticized for being easily mistaken as junk mail — or vote in two consecutive federal elections, they can be struck from the rolls entirely.

Ohio’s practices were part of a national trend. More than 17 million voters were culled from the rolls between 2016 and 2018, according to the Brennan Center for Justice, and states with a history of voter discrimination, including Georgia, Texas, Arizona and Virginia, purge at the highest rates. They often get it wrong. And as Justice Sonia Sotomayor noted in her dissent, these provisions strike minority communities hardest.

Roberts and Alito carried the day in another 5-4 case, 2017’s Abbott v. Perez, which upheld all but one district of a state legislative map that lower courts had ruled an unconstitutional racial gerrymander that diluted the votes of Latinos. The evidence was difficult to ignore. But the court dismissed it anyway, suggesting that a “presumption of legislative good faith” outweighed clear racial animus.

Then last summer, Roberts, again in a 5-4 decision, slammed the doors of the federal courts closed to partisan gerrymandering claims, at precisely the moment when lower court judges appointed by presidents of both parties made clear there was both an urgent need and a clear standard for the judiciary.

Roberts, eyes wide shut again, suggested that voters have the power to undo gerrymandered maps, ignoring a decade of election results across the country that have advantaged the party that draws the maps. More than 59 million Americans now live in states where the party that won fewer votes in 2018 controls one or both chambers of the state legislature; in every one of those states, it’s Democrats who won more votes, Republicans who drew the maps, and Republicans who maintain power.

And he praised the work of citizen-led ballot initiatives that have established independent redistricting commissions in several states, ignoring his own opinion that these commissions are unconstitutional, from a 2015 case that narrowly upheld Arizona’s commission.

Citizens, it turns out, are hardly taking democracy for granted. Those winning 2018 initiatives, after all, were largely grass-roots efforts that took on entrenched power. It’s the courts — Roberts’ court, specifically — that keep rolling back these efforts or making them harder. Roberts’ year-end message may have been eloquent. But was he listening?

President Trump, the smart set suggested during the 2016 campaign, should be taken seriously but not literally. It was perplexing advice, yes. The question is whether the chief justice can be taken either way.

David Daley is a senior fellow at FairVote and the author of the forthcoming “Unrigged: How Americans Are Battling Back to Save Democracy” and “Ratf**ked: Why Your Vote Doesn’t Count.” The views expressed here are his alone. Follow him on Twitter @davedaley3.