July 1, 2021 | Reading Time: 4 minutes
The will of the American people is becoming less important than the will of a Republican high court
In its latest ruling, SCOTUS internalizes Donald Trump's Big Lie.
The United States Supreme Court issued a 6-3 ruling this morning that upholds voting restrictions in Arizona. It overrules a lower court’s finding that two Arizona laws discriminated against minority voters. The high court’s decision pretty much guts Section 2 of the 1965 Voting Rights Act that forbids discrimination based on race.
The Post summed up the ruling in its breaking news alert: “The justices reviewed two laws in Arizona that a lower court said hurt minority voters in the state, even though they are widely used elsewhere in the country. One throws out the ballots of those who vote in the wrong precinct, even if some races—such as for governor or president—are not dependent on precinct location. The other restricts who may collect ballots cast early for delivery to polling places, a practice detractors call ‘ballot harvesting’.”
Just as Big Lie No. 1 was turned into law (voter ID laws are now ubiquitous), Big Lie No. 2 is being turned into law—with aiding and abetting by a United States Supreme Court that’s quickly moving “to intervene in democratic decision-making.”
The decision comes a week after United States Attorney Merrick Garland said the Justice Department would sue Georgia over its similar voting restrictions. That effort faces an even steeper hurtle now that six GOP-appointed justices have masticated Section 2, virtually rewriting voting rights legislation. Justice Elena Kagan, speaking for the liberal minority, suggested as much. In her written opinion, she said that:
The majority writes its own set of rules. … The majority gives a cramped reading to broad language. And then it uses that reading to uphold two election laws from Arizona that discriminate against minority voters. What is tragic here is that the Court has (yet again) rewritten—in order to weaken—a statute that stands as a monument to America’s greatness, and protects against its basest impulses.
The decision is the latest example of what Editorial Board member Christopher Jon Sprigman has called “moves to intervene in democratic decision-making.” “Rule-by-judges,” he wrote in April, is “aggressive judicial supremacy [that] has empowered lawyers, disempowered citizens and turned what could be democracy-enhancing political debates into arid and divisive legal wrangling. … The reason we have partisan judging is because judges have too much power. If we want to fix the problem, we have to find ways to cut back on courts’ ability to intervene in our democracy.”
As for my part, I’ll point out that Justice Samuel Alito, writing for the majority, has internalized the former president’s Big Lie. In his written opinion, Alito said: “One strong and entirely legitimate state interest is the prevention of fraud. Fraud can affect the outcome of a close election, and fraudulent votes dilute the right of citizens to cast ballots that carry appropriate weight. Fraud can also undermine public confidence in the fairness of elections and the perceived legitimacy of the announced outcome.”
That’s pretty much Donald Trump talking. But the former president didn’t come up with it. Voter fraud has been the pretext for shrinking down state electorates to sizes prejudicial to the Republicans since 2013. That’s when the Supreme Court gutted Section 5 of the Voting Rights Act, which required federal authorities to “pre-clear” changes to state and local election laws in states with histories of racial discrimination, aka the former states of the Confederate States of America. With that provision out of the way, states raced to enact restrictive voting laws—all in the name of preventing a crime that never happens in any way meaningful to election results.
Which is to say the GOP’s Big Lie predates the former president’s Big Lie. And just as Big Lie No. 1 was turned into law (voter ID laws are now ubiquitous), Big Lie No. 2 is being turned into law—with aiding and abetting by a United States Supreme Court that’s quickly moving “to intervene in democratic decision-making.” The will of the American people is becoming less important than the will of the Republican court.
But there’s a Big Lie that came before Big Lies No. 1 and No. 2. Let’s call it the Big Ur-Lie. That’s the idea that the United States is a white man’s country and always will be a white man’s country, and any challenge to that authority means all’s fair, because now all’s war. In this context, you can see that voter fraud isn’t when a man pretends to be his dead mother so he can vote for Donald Trump twice in one election. It’s more fundamental than that. Voter fraud is when illegitimate people exercise their constitutional rights to freedom and self-government, and you’re illegitimate if you were not born with the hereditary (i.e., racial) right to rule a white man’s country.
When the former president’s supporters say that “all legal votes matter,” as you can see from the above image taken of a roadside billboard in Branford, Conn., they are doing more than mocking and ridiculing Black Lives Matter. They are saying that Black lives—and the lives of other Americans of color—not only do not matter. They are also illegal. They are not illegal, of course. No life is illegal. But they can be made illegal enough with enough lying and with enough effort to enshrine lies in the common law.
John Stoehr is the editor of the Editorial Board. He writes the daily edition. Find him @johnastoehr.