Conservatives on the Supreme Court Are Trying to Quietly Toss Aside Federalism

Four Justices have made plain their intent to void efforts to facilitate voting rights

Supreme Court Associate Justice Clarence Thomas. Photo: Tasos Katopodis/Getty Images

Republicans have long attacked so-called “activist” federal judges, claiming they interfere with the constitutionally protected autonomy of state government officials, particularly when federal courts have intervened to bar racial discrimination in voting and education. But the Supreme Court’s right-wing majority is now poised to dictate to state judges and governors how to enforce their own election laws, so as to tip the scales in favor of Republican candidates. Working in tandem with Republican legislators seeking to further suppress and dilute Democratic votes, the Court could usher in decades of minority control of both state and federal governments, unless Congress acts.

The political logic is as simple as it is repugnant: The Republican Party is shrinking, particularly as suburban voters — long a key part of the GOP base — recoil from an increasingly nativistic and racist GOP. The party’s prospects for future electoral success thus depend on evermore effectively suppressing and diluting the votes of those citizens who favor Democratic candidates.

The GOP’s self-perpetuating control of the majority of state legislatures has long been key to implementing the party’s strategy of undermining democracy. The Republican Party pioneered the demographic science of partisan gerrymandering both state legislative and congressional districts to maximize Republican victories. GOP mapmakers pack Democratic voters into small numbers of congressional districts, thereby diluting, and indeed nullifying, voters’ actual impact on electoral outcomes. In heavily gerrymandered states like Wisconsin, election results are often so lopsided as to make a mockery of democracy.

In 2019, a 5–4 Supreme Court ruled that the U.S. Constitution places no limits on such partisan gerrymandering, opening the door to even more creative GOP district mapping following the 2020 census — and potentially another decade of Republican control of many statehouses. Furthermore, since legislatures have primary responsibility for drawing House District maps, this also paves the way for the GOP to retake the House, regardless of whether the GOP wins a majority of votes.

But the GOP has not been content with simply diluting Democratic votes, Republican legislators are now singularly focused on outright vote suppression. The Brennan Center reports that, as of the first week of February, 33 state legislatures (most or all dominated by the GOP) had introduced, prefiled, or carried over 165 bills to restrict voting access.

The Supreme Court has also provided the GOP with crucial assistance in its vote suppression efforts. In 2013, the Court nullified the heart of the 1965 Voting Rights Act, which had required preclearance, by courts or the Justice Department, of changes in election law in jurisdictions with a history of discriminatory conduct. Republicans have hailed the decision as a victory for “federalism,” and attacked a Democratic effort to pass remedial legislation as a wrongful scheme to take away states’ rights to control their own election laws.

The GOP’s self-perpetuating control of the majority of state legislatures has long been key to implementing the party’s strategy of undermining democracy.

But, in some states, the GOP has recently begun to face some effective pushback. Democrats have won statewide offices in some states the GOP previously entirely controlled, including through gubernatorial victories in Wisconsin, Michigan, Pennsylvania, and North Carolina. In addition, the GOP has begun to lose its grip over previously GOP dominated state supreme courts. And these Democratic judges and elected officials have begun to successfully challenge some of the GOP’s more audacious vote suppression and dilution efforts.

For example, in 2018, the Pennsylvania Supreme Court ruled that the GOP’s partisan gerrymandering scheme for House districts violated the state’s constitution, and mandated a remapping that, in 2018, resulted in an even split of the state’s Congressional delegation between Republicans and Democrats.

More recently, that same court set the stage for a constitutional clash that has resonated in the U.S Supreme Court for months. As the 2020 election approached, the Pennsylvania Supreme Court upheld, among other things, extending the deadline for accepting mail ballots, in light of the increased use of mail ballots during the pandemic, and the systemic postal service delays engineered by Trump’s Postmaster General.

The Trump campaign, as well as state GOP legislators, responded by going to federal court, seeking to overturn these common-sense accommodations to facilitate voting during a health emergency.

The Supreme Court ultimately chose this week not to decide a challenge to the Pennsylvania decision, because it is now moot in the wake of Biden’s victory. But over the past months, four Justices have made plain their intent to void efforts by state judges and other officials to facilitate voting in the future.

These justices have adopted a previously obscure argument Chief Justice William Rehnquist made in his concurring opinion in the 2000 Bush v. Gore case, which would allow federal judges to second-guess state courts’ interpretation of their own state election laws. Rehnquist relied on a tendentious interpretation of a clause of Article II of the Constitution, which provides that presidential electors are to be appointed “in such Manner as [state] Legislature[s] … may direct.” From this, Rehnquist leapt to the conclusion that state courts have limited power to interpret election laws passed by their own legislatures, and that federal judges can step in and void state court election law decisions by asserting that state judges have “infringed on [their own state] legislature’s authority.”

Only two other Justices (Antonin Scalia and Clarence Thomas) signed on to Rehnquist’s 2000 opinion; and for good reason. Since the 1930s, the Supreme Court has recognized that it’s the purview of state, not federal, courts to interpret state laws as well as the state constitutions that frequently inform such interpretations.

But Rehnquist’s argument suddenly began reappearing late last year in opinions written or joined by Justices Justices Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, each favoring federal court intrusion in state election law matters to aid Trump’s pre-election vote suppression efforts.

Gorsuch, for example, argued that, by facilitating mail voting during the pandemic, state officials in North Carolina had done “damage to faith in the written Constitution as law, to the power of the people to oversee their own government, and to the authority of legislatures.” Kavanaugh declared in another case that “the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.”

On Monday, Justices Thomas, Gorsuch, and Alito each issued or joined opinions again arguing that the Court should take up the Pennsylvania case, despite its apparent mootness, and thereby lay down a marker against state courts or governors that might have the temerity to interpret their own laws to aid voters in exercising the franchise in the future.

Thomas also took the opportunity to issue a screed against mail voting, asserting, like Trump (and wholly contrary to fact) that “the risk of fraud is vastly more prevalent, for mail-in ballots” and going on to suggest (again in an echo of the former president and others who sought to overturn the 2020 election results) that the widespread use of mail ballots leaves the public uncertain who is the legitimate winner of an election. Thomas thereby left a clear impression that he not only relishes a future opportunity to judicially override state election law decisions, but also to do so in service of the most paranoid and conspiratorial of anti-democracy theories advanced by Trump, as well as the insurrectionists who invaded the Capitol.

While four of the Supreme Court’s now six-member far-right majority have expressly advocated using their position on the nation’s highest court to take over power to interpret state election laws, Chief Justice Roberts and newly installed Justice Barrett have yet to express their views. Given her status as an avowed acolyte of Justice Scalia, who signed onto the Rehnquist opinion in Bush v. Gore, however, it seems more than likely that Barrett will adopt the view of the majority of her far-right colleagues when the issue next comes before the Court.

The likelihood that the Supreme Court will step in to hamstring efforts by state officials and courts even to apply their own laws to facilitate free and fair voting makes it all the more essential that Congress act soon to enact the John Lewis Voting Rights Enhancement Act, which is intended to undo the damage the Supreme Court has done to the Voting Rights Act, as well as the For the People Act, which would limit partisan gerrymandering of House Districts. The future of the nation’s democracy could depend on it.

More on the Supreme Court’s right turn

A conservative majority is going to shape the law of the land for years to come. How did we get here?

  • In 2008, the NRA’s interpretation of the Second Amendment was enshrined into law—paving the way for militias like those at the Capitol riot.
  • To understand right-wing women like Justice Amy Coney Barrett, it’s useful to understand the difference between hostile sexism and benevolent sexism.
  • Supreme Court justices never used to die on the job. David Litt writes about how the most coveted job in politics became a life-or-death struggle.

David Lurie is a lawyer who practices in New York City. He has also written for Slate and The Daily Beast. You can follow him on Twitter here: @davidrlurie

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