Last week, Rep. Terri Sewell, Democrat of Alabama, introduced some tweaks to the John Lewis Voting Rights Advancement Act. Among the modifications is some interesting bit of legislatin’ designed to rein in Roberts Supreme Court where it comes to voting rights rulings. Three of the court’s judges signalled last fall that they were content to void tens of thousands of ballots submitted under legal rules the Supremes later overruled.
Slate’s Mark Joseph Stern summarizes Ian Millhizer’s Vox analysis:
The House bill actually repeals the court’s own rules for deciding election-related cases—which strongly favor states’ ability to suppress votes—replacing them with voter-friendly directives that would force the justices to safeguard equal suffrage. H.R. 4 also takes on the “shadow docket,” prohibiting the Supreme Court from issuing unreasoned emergency orders reversing lower court decisions that protected the franchise. And it abolishes the legal doctrine that allows the justices to shield anti-voting laws from judicial scrutiny in the run-up to an election.
Inspiring the changes are the court’s response to changes voters demanded to election rules in 2020 to make it easier and safer to vote during the pandemic. While lower courts often granted that flexibilty, the Supremes quashed those rulings on review in the “shadow docket,” often citing what Millhizer describes as “new, seemingly made-up limits on the Voting Rights Act’s safeguards against racism in elections.”
Stern explains:
First, the conservatives turbocharged “the Purcell principle,” the doctrine that federal judges shouldn’t change voting laws on the eve of an election. The Purcell principle began as a modest warning against confusing voters who are already on their way to the polls. But throughout the 2020 election, SCOTUS wielded the Purcell principle to insulate state voting procedures from judicial review in the months before Election Day. Second, the conservatives consistently ignored or rejected district courts’ factual findings that election regulations would severely burden the right to vote. Third, and relatedly, these justices valued states’ interest in enforcing their own election laws over citizens’ right to cast a ballot. They even seemed to reject the notion that the public has an interest in protecting the right to vote; instead, they assumed that the public’s only interest lay in enforcing restrictive statutes. Because the court had to weigh the public interest when deciding whether to halt a lower court order, this hostility led the majority to block multiple orders expanding access to the vote.
Three Republican-appointed justices also pushed the court to the brink of the (previously) unthinkable: Nullifying ballots cast pursuant to a lower court order. On Sept. 18, 2020, a district court suspended South Carolina’s requirement that a “witness” sign mail ballots. The federal appeals court declined to halt the decision, so for weeks, thousands of voters returned mail ballots lacking a witness signature. Then, on Oct. 5, the Supreme Court restored this requirement. Alarmingly, three justices—Clarence Thomas, Sam Alito, and Neil Gorsuch—would’ve voided every ballot lacking a witness signature, including those cast in reliance on the lower courts’ decisions. Ballots, in other words, that were perfectly legal at the time they were mailed back.
H.R. 4 is a frontal assault on every component of the Supreme Court’s voting rights shadow docket. It repeals the Purcell principle, forbidding both SCOTUS and the federal appeals courts from citing proximity to an election as an excuse to reinstate a voting restriction. (There are minor exceptions for extreme circumstances on the eve of Election Day.) It bars the justices from considering “a state’s generalized interest in enforcing its enacted laws” when deciding whether to block or permit an election regulation. And it instead compels the court to “give substantial weight to the public’s interest in expanding access to the right to vote.” Under H.R. 4, the Supreme Court may not set aside a lower court decision expanding voting access unless it finds that burdens on the state “substantially outweigh” the “public’s interest in expanding access to the ballot. The court may not set aside the district court’s factual findings unless they’re “clearly erroneous.” And it must provide a “written explanation” laying out its reasoning.
Finally, H.R. 4 preempts the Supreme Court from issuing a future decision nullifying valid ballots, as Thomas, Alito, and Gorsuch tried to do in South Carolina. The justices “shall not order relief,” the bill states, that abridges the right to vote of “any citizen who has acted in reliance” on a lower court order that suspended voting restrictions.
What a concept.
Rick Hasen, election law scholar at the University of California, Irvine School of Law, predicted in 2016, “By making the Purcell principle paramount, the Court runs the risk of issuing orders which can disenfranchise voters or impose significant burdens on election administrators for no good reason.” Just the kind of judicial overreach Republicans normally decry.
Millhizer concluded last week:
If enacted, the new John Lewis Act would be one of the most ambitious voting rights laws ever enacted by Congress — though, again, its success depends on Senate Democrats unanimously concluding that protecting democracy is more important than preserving the filibuster. In either event, however, the bill is a giant middle finger to the Roberts Court, which has been extraordinarily hostile toward voting rights.
If nothing else, in other words, the latest version of the John Lewis Act recognizes that one of the greatest threats to American democracy is the Supreme Court of the United States — and that Congress needs to confront the Court’s recent decisions directly if it hopes to protect democracy in the United States.
Millhizer has much more on what is in the bill as it stands now. The problem, of course, is the filibuster standing in the way of Democrats passing it through the Senate.
Anyone else sick of hearing that broken record skip?