Rolling Stone
The Revenge of John Roberts
WASHINGTON — In the fall of 1981, a young conservative lawyer named John Roberts, fresh off a Supreme Court clerkship, arrived at the Justice Department at the start of Ronald Reagan’s presidency. Hired as a special assistant to the attorney general, Roberts focused on voting rights, and in particular the battle underway in Congress over the reauthorization of parts of the landmark Voting Rights Act of 1965. That included Section 2 of the law, which gave voters a tool to fight discriminatory voting laws and rules in the states.
As Roberts settled in at DOJ, a coalition of Democrats and Republicans in Congress wanted to reform Section 2. Under their plan, voters could strike down discriminatory voting laws by proving those laws caused discrimination, not that the people who made the laws had set out to discriminate. In other words, intent didn’t matter; outcomes did.
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John Roberts helped lead the fight to stop this change. He drafted op-eds, talking points, and memos arguing that the proposed reforms gave the federal government too much power to influence state voting laws and would lead to a quota system for who held elected office.
Roberts and the Reagan DOJ failed. The Voting Rights Act reauthorization passed with bipartisan support in 1982, and the number of lawsuits about discriminatory voting laws brought under Section 2 went from three in 1981 to 175 in 1988, according to the book Give Us the Ballot by the journalist Ari Berman. But Roberts would get his revenge. He claimed the Supreme Court chief justice’s seat once held by his mentor, William Rehnquist, in 2005. In the ensuing years, Roberts has chiseled away, piece by piece, at the nation’s laws for voting rights, campaign spending, and other democracy issues. Today, voting-rights activists and election-law scholars say the Roberts court, having dismantled chunks of the post-Watergate ethics reforms and the Voting Rights Act, is one of the biggest impediments to democratic reform at a time when the country needs those reforms more than ever.
The final two opinions of the most recent Supreme Court term put this phenomenon on full display. In Americans for Prosperity Foundation v. Bonta, the court’s six conservative justices ruled that California’s requirement that charities disclose their biggest donors to state regulators was unconstitutional. Critics of anonymous political spending say the decision will fuel future challenges to transparency laws and empower anonymous donors at a time when American politics is awash in dark money from Democratic and Republican groups alike. “We are now on a clear path to enshrining a constitutional right to anonymous spending in our democracy, and securing an upper hand for dark-money influence in perpetuity,” Sen. Sheldon Whitehouse (D-R.I.) said in a statement reacting to the decision.
In the second decision, Brnovich v. DNC, the Roberts court knee-capped Section 2 of the Voting Rights Act. The Brnovich decision, legal experts say, will give greater leeway to state governments when they craft voting rules, and makes it much harder to prove that a voting law is discriminatory. “This is the rewrite of Section 2 that John Roberts couldn’t get in 1981,” Rick Hasen, an election-law expert at the University of California, Irvine, tells Rolling Stone. “I think it’s going to be extremely difficult now (to bring Section 2 challenges) except for the most egregious forms of voter discrimination.”
Combined, the AFPF and Brnovich decisions continue the Roberts court’s decade-plus track record of undermining the hard-fought voting laws enacted during the Civil Rights Movement and the anti-corruption reforms passed in the aftermath of the Watergate scandal. And with a six-vote conservative majority on the Supreme Court in place for years — if not decades — to come, that trend shows no sign of ending soon. “As long as there’s a strong conservative majority on the court, any hope that the courts will do anything to rein campaign spending or states’ efforts to restrict the vote or tilt the playing field is indeed a hollow hope,” says Lee Drutman, a senior fellow in the Political Reform program at New America.
In the face of the Roberts court’s agenda, reformers in Congress and in state legislatures as well as election-law scholars say the need for new policies tailored to survive the high court’s scrutiny. Coming at a time when Republican state governments are seeking to restrict access to the ballot box, the Supreme Court’s latest decisions are “yet another affront to Americans’ right to pick their elected officials and know who is working to influence the democratic process,” Sen. Amy Klobuchar (D-Minn.) tells Rolling Stone. “This further underscores the need for Congress to pass legislation to protect the freedom to vote and ensure that our democracy works for the people, not for special interests and billionaires.”
Before surveying the options under consideration by reformers, it’s worth better understanding how far-reaching and potentially damaging the Supreme Court’s last two decisions were.
In the AFPF case, the court struck down California’s requirement that large donors to charities must be disclosed to the state government so that the state can root out possible fraud related to those donors. The Americans for Prosperity Foundation, a Koch-backed group, and the Thomas More Law Center challenged that requirement, saying it violated the group’s freedom to associate in private. They also cited the risk of harassment if the private donor information became public (as had happened in the past when some donor information was leaked).
The case harkened back to the influential NAACP v. Alabama decision in 1958, when the Supreme Court ruled that the NAACP didn’t have to disclose members who feared facing retribution in the Jim Crow South. In AFPF, the NAACP Legal Defense Fund, ACLU, and other civil-rights groups invoked that earlier case in a friend-of-the-court brief that argued for the right to associate in private and urged the court to reach a narrow decision that would have struck down California’s rule without broader implications for transparency in civic and political life.
Instead, the majority’s opinion, written by Roberts, has broad implications for politics and activism. Before, the Supreme Court had made clear that disclosure was important enough to preserve even if it led to some nastiness or vitriol as a result. In his AFPF opinion, Roberts tossed that out the window. The mere possibility of a chilling effect on association was enough, he wrote in his opinion, to justify getting rid of certain disclosure requirements.
Roberts’ decision does more than wipe out California’s law, experts say. Under this reasoning, it opens the door to future challenges to longstanding laws on the disclosure of campaign donations put in place after Watergate, when untraceable money flooded into American elections and led to corruption. “Today’s analysis marks reporting and disclosure requirements with a bull’s-eye,” Justice Sonia Sotomayor wrote in her dissent in the AFPF case.
In Brnovich, the voting-rights case, the Roberts court took the opposite stance toward a state’s authority to set the rules. This time, in an opinion written by Justice Samuel Alito, the court deferred to the states to set their own voting rules and raised the bar almost impossibly high to challenge those laws for alleged discrimination, voting-rights advocates say. The majority’s opinion makes it so that a state can justify voting changes (cutting early voting, restricting absentee voting, reducing polling places) if it did so in the interest of preventing possible fraud, even if such fraud is vanishingly rare. The majority’s Brnovich ruling also takes as its benchmark the year 1982 — the year when Congress last passed major updates to the Voting Rights Act — for gauging the discriminatory nature (or not) of voting changes.
Rick Hasen, the election-law expert, describes the practical effect of the decision like this. Imagine that a state offered a week of early voting, he says, and there was evidence that a large number of African American voters used the Sunday before the election to do Souls to the Polls drives to get people to vote right after church. Then imagine that, post-Brnovich, the same state got rid of Sunday early voting and the evidence suggested the state did so to blunt African American turnout.
Under the Roberts court majority’s approach, Hasen says, this would likely not run afoul of Section 2. In his opinion, Alito says the benchmark for measuring whether a voting change is discriminatory is how it compares to the voting rules when the VRA was last reauthorized — in 1982. His test also implies that as long as a state can point to other voting opportunities, it can fairly justify cutting something like Sunday early voting. “For one reason, in 1982 there were very few early voting opportunities, so eliminating early voting can’t be a Section 2 violation because that wasn’t the norm in 1982,” Rick Hasen says. “For another thing, you have to look at the election system as a whole, so long as there are other ways to vote, then it’s not discriminatory under this court’s ruling.”
So what can — and what should — Congress do?
Lee Drutman, the New America political-reform expert, says the For the People Act, aka H.R. 1 and S. 1, contains a number of provisions that could repair some of the damage done by the Supreme Court’s two most recent decisions. That bill — which was recently filibustered in the Senate but Democrats have vowed to revive — would increase disclosure of dark-money donations, mandate paper ballots, and give the federal government more latitude to expand access to the ballot box.
But Drutman acknowledges that many of the most popular pieces of the For the People Act — which has a slim change of passing in the first place — will face challenges by conservative and libertarian legal groups. “Republicans are going to litigate the hell out of it,” he says.
As pressure builds inside the American democratic system because of hyper-partisanship, the nationalization of politics, and many other factors, what’s needed are release valves, Drutman says. He supports reforms that might break the “two-party doom loop,” as he puts it. Those include Alaska’s model of a top-four primary election and ranked-choice voting like in New York City but applied to, say, the U.S. Senate. “I think you’d see opportunities for more political parties and new coalitions forming,” he says. “You’d get the release valves.”
Rick Hasen says lawmakers should focus for now on the most immediate threat to American democracy: election subversion. He says the country narrowly avoided such a disaster in the 2020 election despite Trump’s attempts to pressure state and local election officials, like when he asked Georgia Secretary of State Brad Raffensperger to “find” 11,870 votes to give him the victory in Georgia. But with the Trumpist wing of the GOP in full control, and Republican state legislatures moving to pass laws that empower partisans to dictate how elections are run and counted, subversion remains a threat, whether it’s the prospect of a state legislature selecting a rival slate of electors, a president pressuring election workers to change the count, or members of Congress disrupting the certification process in Washington, D.C.
Hasen says the universal use of paper ballots, tougher penalties for anyone who interferes with the election-counting process, and reform of the antiquated Electoral Count Act could all help prevent a future attempt to overturn or change an election outcome. It’s also a more narrowly tailored solution that, he says, could win over 10 Senate Republicans.
“We may not know until January 2025, when Congress has counted the Electoral College votes of the states, whether those who support election integrity and the rule of law succeeded in preventing election subversion,” Hasen wrote this spring. “That may seem far away, but the time to act to prevent a democratic crisis is now.”