The Supreme Court’s Sometimes Questionable Adherence to Principle in Voting Rights Cases

A guest post by Lawrence Friedman

In Republican National Committee v. Democratic National Committee, the U.S. Supreme Court ruled that absentee ballots in Wisconsin had to be postmarked by election day or earlier, which meant that many citizens would have to brave the polls and risk exposure to the novel coronavirus in order to vote. A New York Times story subsequently observed that the per curiam decision “was in keeping with a broader Republican approach that puts more weight on protecting against potential fraud — vanishingly rare in American elections — than the right to vote, with limited regard for the added burdens of the pandemic.”

This view aligns with that of the critics who note that the results in many of the Court’s recent voting rights decisions tend as a practical matter to inure to the benefit of the Republican Party. Indeed, a central question raised by the Court’s rulings in this area is whether the prevailing majority in these cases – Chief Justice John Roberts, along with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh – is motivated solely by partisanship. Writing in The Atlantic about the decision in the Wisconsin case, for example, Garret Epps asked whether the majority was “guided by principle or by simple allegiance to the party that has gone to such lengths to seize control of the Court.”

There is an argument to be made that there is a principle at work in election cases—that the Court’s rulings reflect neither the majority’s embrace of dubious theories about voter fraud nor a bare desire to harm Democrats but, rather, a commitment to resolving disputes about who gets to vote on neutral grounds. Indeed, the Roberts court’s voting rights decisions can be seen as expressions of the majority’s abiding interest in avoiding – seemingly at all costs – any judicial involvement in the way state governments run elections. This interest follows from the premise that, as the majority reads it, the constitution is pre-political: there are no Republicans and Democrats, only candidates; and the rules under which elections are run are, other than when they are expressly discriminatory on the basis of race, the purview of legislators. Continue reading “The Supreme Court’s Sometimes Questionable Adherence to Principle in Voting Rights Cases”