Civil and Human Rights

Why the Roberts court is scary

By Donna Brazile

This year, we’re observing the 150th anniversary of the end of the Civil War. That’s a long time ago. But there are people alive today who are living connections to that event.


There are Americans today who personally knew a relative who was born into, and then freed from, slavery. The ancestors of those people did not see freedom. But those who came later did. They saw the ratification of the 14th and 15th amendments to the Constitution that guaranteed equal protection and the right to vote.


It took 100 years after winning these freedoms for African-American men and women to surmount obstacles placed in the way of their right to vote with the passage of the Voting Rights Act, 50 years ago this year.


Unfortunately, it was only 48 years later that the Supreme Court, in 2013, gutted the most important provision of the Voting Rights Act, in Shelby County v. Holder. Chief Justice John Roberts wrote the majority opinion that stripped the federal government of its most important tool to enforce laws against racial discrimination in voting.


Monday marks the 10th year of Roberts as chief justice of the United States. In a report issued last week — “Roberts at 10: Turning Back the Clock on Protections for Racial Equality” — the Constitutional Accountability Center looks back on the court’s decisions on racial issues.


In summary, the center’s conclusion is: Over the course of his tenure on the court, Roberts has sought to move the law sharply to the right, always on the lookout for cases he can use as vehicles to make clear that the law should be colorblind and to cut back on civil rights laws designed to redress our nation’s long history of racial discrimination.


The center is also making predictions on where he will side on the two key cases relating to racial justice in the court’s new term: Evenwel v. Abbott, Gov. of Texas (which centers on the topic of “one person, one vote”) and Fisher v. University of Texas at Austin (which concerns affirmative action in college admissions).


In 2007, Roberts (who has said any racial discrimination is too much) concluded in a plurality opinion that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” That’s the same as saying, “The way to stop racial discrimination in housing is for owners to stop discriminating on the basis of race.” Roberts’ ruling effectively says, “Nondiscrimination is voluntary; no counterweights to discrimination allowed.” He also wrote in a redistricting case: “It is sordid business, this dividing us up by race.”


According to the Brennan Center, in state after state, laws have been passed that hinder the ability of minorities to vote — under the pretense of preventing voting fraud. Requiring a driver’s license to vote is the most popular. But, millions of Americans don’t drive, or can’t afford a driver’s ID, and in some places in Texas, for example, it can be over a 100-mile drive to the nearest department of motor vehicles.


Alabama (where the same Shelby County that despoiled the Voting Rights Act is located) recently closed 31 driver’s license bureaus. A Birmingham News columnist reported, “Every single county in which blacks make up more than 75 percent of registered voters will see their driver license office closed.”


Now comes before the Supreme Court the case of Evenwel v. Abbott, Gov. of Texas. Having undone protections against racial discrimination in voting, the court is asked by appellants to overthrow the “one man, one vote” rule.


The case is nakedly political. It asks the Supreme Court to base representation in state houses (and, by extension, Congress) solely on the eligible voter population, rather than entire population. As noted by a brief filed by leading political scientists, the Evenwel plaintiff’s “interpretation of the constitutional requirement of one person, one vote is radical not only in its theoretical underpinnings, but also in its real, practical implications for the redistricting process.”


What would it mean if the court sided with the appellant Evenwel? That only a certain segment of the population — the relatively smaller segment eligible to vote — would be counted when drawing district lines. So children, non-U.S. citizens such as U.S. legal residents and, in many states, people with felonies — who are also affected by policy decisions made at the local and state levels — would not be counted and therefore denied equal representation.


This case has even further implications for the future of democratic representation.


The CATO Institute — a “libertarian think tank” in Washington, D.C., founded by one of the Koch brothers — filed a brief with the court that is stunning in its admission: They don’t want to count Hispanics who aren’t eligible to vote for representation.


The number of Hispanics who are eligible to vote is relatively small in some areas. Counting all people in a district, including Hispanics who are ineligible to vote, CATO argues, inflates the value of each eligible voter in the district.


What’s the next step? Count only those voters who actually vote?


If the Roberts court agrees with this scheme, then legislative districts would be redrawn. Large fellowships of citizens, many with large populations of children and communities of color (whoever has noneligible voters), will be excluded as so much empty space. Texas districts will wind their way through neighborhoods where eligible voters are clustered, people who tend to be old, white and rich, trending Republican.


Of course, the legislative district line would encompass noneligible voters. It’s just that these residents (in some places the majority) would literally “count for nothing” for purposes of representation.


So, in self-defense, suppose those in communities harmed by these changes decide to register to vote. Then, they encounter half a dozen roadblocks — such as eliminating same-day registration, reducing early voting, resisting online voter registration — now in place, thanks to the Roberts court gutting of the Voting Rights Act, in the name of nondiscrimination.


This is a raw grab for political power. The Pew Research Center in Washington, D.C., a nonpartisan, nonprofit fact-finding organization, surveyed where registered voters live and found “there also are clear partisan differences between districts with high and low shares of eligible voters.” Democrats represent those areas with the greatest share of young, noncitizen and otherwise ineligible voters.


The “one man, one vote” rule is under attack in this case. The Roberts court, just by allowing the appeal, is entertaining the idea of scrapping it. Does that scare you? It does me.

More from Civil and Human Rights

Civil and Human Rights
June 20, 2024

RELEASE: Supreme Court decision keeps the door open to accountability for police officers who make false charges

WASHINGTON, DC – Following this morning’s decision at the Supreme Court in Chiaverini v. City...
By: Brian R. Frazelle
Civil and Human Rights
June 11, 2024

The People Who Dismantled Affirmative Action Have a New Strategy to Crush Racial Justice

Last summer, in Students for Fair Admissions v. Harvard College, the Supreme Court’s conservative supermajority struck...
By: David H. Gans
Civil and Human Rights
April 12, 2024

TV (Gray TV): CAC’s Frazelle Joins Gray TV to Discuss Fourth Amendment Case at Supreme Court

Gray TV Washington News Bureau
Civil and Human Rights
April 22, 2024

RELEASE: Justices grapple with line-drawing but resist overturning important precedent in Eighth Amendment homelessness case

WASHINGTON, DC – Following oral argument at the Supreme Court this morning in City of...
By: Brian R. Frazelle
Civil and Human Rights
April 19, 2024

Will the Supreme Court Uphold the 14th Amendment and Block an Oregon Law Criminalizing Homelessness?

Nearly 38 million Americans live in poverty. In some areas and among some populations, entrenched economic...
By: David H. Gans
Civil and Human Rights
April 18, 2024

DEI critics were hoping that the Supreme Court’s Muldrow decision would undermine corporate diversity programs. It does no such thing

The Supreme Court just delivered a big win for workers and workplace equality–but conservatives are...