The Supreme Court’s War on Democracy

By GENE NICHOL

In the Supreme Court’s South Carolina case in May, Alexander v. NAACP, the Roberts Court continued to press the Republican crusade against pluralistic democracy. Earl Warren and Thurgood Marshall (and Julius Chambers) weep.

In 2013 — without textual, historical or precedential justification — the U.S. Supreme Court invalidated the crucial preclearance requirements of the iconic federal Voting Rights Act in Shelby County v. Holder. Chief Justice John Roberts famously declared “things have changed dramatically” in the American South. “Discriminatory evasions of federal decrees are rare.” North Carolina Republican leaders rejoiced, claiming “now we can go with the full bill” – as they enacted one of the most restrictive and discriminatory voting provisions in the modern era.

Next, in the North Carolina case, Rucho v. Common Cause (2019), the federal high court decreed, for the first time, that political gerrymandering cases cannot be heard in federal tribunals. Roberts and his colleagues effectively embraced what the nation’s leading election law scholar deemed “the most brazen and egregious” gerrymanders in American history. Justice Elena Kagan noted in dissent that North Carolina’s districting decisions “debased and dishonored our democracy, turning upside down the core idea that government power derives from the people.” Tar Heel Republicans took her words as a compliment.

And now, in the South Carolina decision, the Supreme Court has dramatically expanded the Rucho loophole. Justice Samuel Alito, that Dobbs-writing, upside-down-flag flying friend of democracy, authored a predictable 6-3 partisan ruling making it decidedly more difficult to prove race discrimination cases. As UCLA’s Rick Hasen put it: “Alito once again came up with a legal framework that makes it easier for states to engage in redistricting to help White Republicans maximize their political power.” Justice Clarence Thomas would have gone even further – making racial gerrymandering permissible across the board.

After Rucho, of course, partisan gerrymandering is permitted while racial gerrymandering is theoretically banned. But, for Alito, “these doctrinal lines collide when race and partisan preference are highly correlated.” Therefore, when a legislature asserts partisan justification for its efforts, “courts must exercise extraordinary caution” in determining claims of race.

Such charges assert “offensive and demeaning conduct” and must, accordingly, be heavily presumed against – “reflecting due respect for the judgment of state legislators.” Alito therefore demanded what the dissenting justices deemed “new rules of evidence to burden plaintiffs in racial gerrymandering cases.” No surprise there.

This is familiar terrain in North Carolina. We know well the mantra – “we’re not discriminating against voters because they’re Black, we’re discriminating against them because they’re Democrats.” Our hands are clean.

Does anyone in North Carolina actually think, with the Alito-led majority, that you can separate race and politics in the Tar Heel State? Really? If the (usually) all-White Republican caucuses of the N.C. General Assembly — who repeatedly and almost famously over the last dozen years have enacted statutes designed to limit the electoral, political and dignitary rights of African-Americans (or so the courts tell us) – establish voting regulations, are they racial or merely political?

Now, not only is political cheating okay, but we must create a safety zone for political conniving which “correlates highly with race.” This is said to be necessary lest our lawmakers be accused of “offensive and demeaning conduct”. Snowflake grievance written into law. Better to exclude Black voters from the polity than hurt the feelings of white lawmakers.

Oddly, the bolstered Alexander case presumptions create an incentive in favor of heavily racialized political parties. If a party looks and behaves like a racialized entity, it will be easier to claim, or to defend, its districting plans as merely partisan, not racial. Maybe that’s the theory.

Gene Nichol is Boyd Tinsley Distinguished Professor of Law at the University of North Carolina School of Law and in 2015 started the North Carolina Poverty Research Fund after the UNC Board of Governors closed the state-funded Poverty Center for publishing articles critical of the governor and General Assembly.

From The Progressive Populist, July 1-15, 2024

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