Democracy in Peril

How the U.S. Supreme Court set the stage for Republican lawmakers to steal elections.

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For years, Fred Culp cast his vote for President without difficulty—until Republicans in North Carolina pushed through voter ID restrictions in 2013.

Culp, who is Black, was born in South Carolina on the eve of World War II. He grew up during a time when Black people could enter white restaurants only through side doors and segregation was enforced by police. He made his home in Waxhaw, North Carolina, about 100 miles south of Greensboro, where young Black men and women held sit-ins at the Woolworth’s lunch counter. Waxhaw is in a county where, in 1961, the police blatantly orchestrated the violent beatings of Freedom Riders.

Gerrymandering does not mean only that thousands of people end up losing a real chance for representation. It also means that states as a whole lose incentives for elected representatives to come together for the common good.

As a young man, Culp watched the Reverend Martin Luther King Jr. rally people of conscience to make good on the Fourteenth Amendment’s promise of “equal protection of the laws,” through bills like the Voting Rights Act of 1965.

For decades, this act stopped states like North Carolina from changing their election laws or procedures without prior review by the Voting Rights Section of the Civil Rights Division of the U.S. Department of Justice. That changed on June 25, 2013, when the U.S. Supreme Court, dominated by Republican nominees, gutted the Voting Rights Act by removing the requirement of prior review.

This decision was handed down just six days after Juneteenth celebrations marked the anniversary of the official end of slavery in the United States. Even after the bloodiest war in U.S. history, it took another five years, until 1870, for Congress to enshrine the Fifteenth Amendment into the Constitution, giving the right to vote to Black men born in the United States—men like Culp.

For a brief period, Black men in the South not only voted but were elected to local, state, and Congressional offices, including Hiram Rhodes Revels, the nation’s first Black U.S. Senator. The white supremacist sons and daughters of the Confederacy responded by concocting a web of laws that were “neutral” on their surface, but racist in their effect.

One example was imposing literacy tests as a prerequisite to registering to vote. In practice, that requirement was applied with caprice. And, by law, it exempted those whose grandfathers had voted when only white men were allowed to vote. That is the white supremacist origin of the phrases “grandfathered in” and the “grandfather clause.”   

In 1965, just a few years after Culp became old enough to vote, the Voting Rights Act limited the ability of Southern states to make changes to the electoral system unless they could prove a prospective change “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color.”

 As President Lyndon Johnson said when he signed the act into law: “The vote is the most powerful instrument ever devised by man for breaking down injustice and destroying the terrible walls which imprison men because they are different from other men.”

That law stood tall, until 2013, when Chief Justice John Roberts, in the case Shelby County v. Holder, declared its central enforcement mechanism unconstitutional. Roberts ruled there was no longer any need for those enforcement provisions, because of how far society had evolved.

“[T]he conditions that originally justified these measures,” he wrote, “no longer characterize voting in the covered jurisdictions.” A mere seven years prior, in 2006, a bipartisan Congress had found them justified and reauthorized the protections for twenty-five more years.

Within hours of the Roberts Court’s 5-4 ruling on that June day, the then Attorney General of Texas, Greg Abbott, announced that the voter ID restrictions that had been blocked by the U.S. Department of Justice could go into effect. Alabama’s and Mississippi’s blocked voter ID restrictions also went into effect. And, exactly thirty days after the ruling, the North Carolina legislature passed numerous election law changes, including voter ID restrictions, that would limit access to the polls.

When Culp went to vote in 2016, he was not allowed to cast a regular ballot because his state-issued ID (with his photo) had expired. He had not needed a driver’s license for years because he did not drive due to a neck injury; his wife has helped him to get places. That year, he was allowed to cast a “provisional” ballot, meaning one that is not counted on Election Night and could later be rejected by the county. He was not able to secure the birth certificate necessary for a new state ID because his mother’s legal name (“Mattie” vs. “Maddie”) is spelled differently in two different legal documents.

So, in 2018, Culp became one of the plaintiffs in a lawsuit alleging that officials in North Carolina violated their right to vote. On September 17, 2021, a North Carolina state court panel ruled in favor of Culp and his fellow plaintiffs, finding that the measure had targeted Black voters with the intent of making it harder for them to vote.  

In another lawsuit in Wisconsin, in 2016, Eddie Lee Holloway Jr. spells out how he was blocked from voting because his birth certificate listed him as “Eddie Junior Holloway.” Even though he brought three forms of identification to the polls, Holloway was not allowed to vote in Wisconsin. Like Culp, Holloway is Black.

Carl Ellis, a homeless veteran living in Milwaukee, also wanted to vote with his officially issued Veteran Identification Card, but it lacks an expiration date and so could not be used as proof of identity under Wisconsin’s law, and he could not afford the cost of obtaining a new birth certificate. Ellis, too, is Black. He joined a Wisconsin lawsuit in 2011 so he could vote in 2012; it took two years, until 2013, for him to get a state ID.

In a trial about those restrictions, experts testified that at least 300,000 Wisconsinites were likely harmed by them, with minorities being disproportionately impacted.

In North Carolina, after the voter ID bill was signed into law in 2013, it was blocked by a federal court, which found that the measure “target[ed] African Americans with almost surgical precision.” It said the Republican-controlled General Assembly “unmistakably” sought to “entrench itself” by targeting voters based on race.

Republicans in North Carolina took up an amendment to embed voter ID restrictions into the state constitution illegitimately, according to the Reverend T. Anthony Spearman, the president of the state NAACP branch. It passed with 55 percent of the vote, with strong majorities of Black residents in opposition. When it was challenged in court by Culp and others, it was struck down again. But other challenges to these restrictions have not been as successful, including the one in Wisconsin.

In 2021, more voter restrictions passed than in any year since before the passage of the Voting Rights Act. According to the Brennan Center for Justice, at least thirty-four laws restricting voting access have passed in nineteen states since January 2021. In total, staggeringly, “more than 440 bills with provisions that restrict voting access have been introduced . . . in the 2021 legislative sessions.”

This past year, after Donald Trump’s false claims that the election was stolen, GOP legislatures have set out to change election laws at his behest. Trump’s allies claim they are simply making it “easier to vote and harder to cheat,” but that slogan is also a lie, as are efforts to dress up this repressive campaign as “election integrity.”

Every legitimate investigation into claims of voter fraud over the past two decades has turned up no evidence of widespread voter fraud anywhere in the country. A recent Associated Press investigation detailed how Republicans around the country are changing the rules for who gets to certify elections, thus laying the foundation for potential fraud or election theft in 2022 and 2024.

In Georgia, an election bill signed into law in March 2021 by Governor Brian Kemp restricts voting and gives the state’s GOP-controlled General Assembly what the AP calls “new powers over the state board of elections, which controls its local counterparts.” In Pennsylvania and Wisconsin, the GOP-controlled legislatures have ordered up much-criticized, hyper-partisan reviews of the 2020 presidential election, taking a page from Arizona’s folly, despite the fact that every single state certified the 2020 election results. Recently, a pastor who attended Trump’s “wild” January 6 speech that incited the insurrection at the Capitol won a race to become an election judge in Lancaster County, Pennsylvania.

On top of all that, with the 2022 elections ahead of us, states across the country are redrawing voting boundaries following the 2020 Census to favor the party in charge. This is an area, too, where the Roberts Court has sought to limit federal power to intervene. In a 2019 case, Rucho v. Common Cause, a majority of GOP-appointed justices in a 5-4 decision wiped away federal judicial oversight of computer-devised maps drawn using detailed voter data that all but ensure victory for the map drawers.

The result in states like North Carolina and Wisconsin is that Democrats can win statewide offices, including U.S. Senator, governor, and attorney general, but, due to grossly distorted maps, Republicans control lopsided majorities in both legislative houses. The effect is minority rule, in defiance of the essential quality of a representative democracy.

Notably, the American Legislative Exchange Council, or ALEC, is pushing to eliminate direct election of Senators (and instead have state legislators elect them). ALEC legislators have also used lame-duck governors to limit the powers of Democrats elected statewide without the gross distortions of the artificial boundaries that GOP-controlled legislatures have drawn. (ALEC also made voter ID restrictions a national priority after Barack Obama was elected President; the measure was adopted by an ALEC task force co-led by the National Rifle Association where state legislators voted as equals with corporate lobbyists to approve the measure, which became the baseline for the bills that were introduced.)

In some ways, the biggest victim of this extreme “gerrymandering” is the quality of our democracy itself. It also insulates elected officials from accountability, other than the potential to be pulled further to the extreme when the only significant threat they face to their careers is a partisan primary. Gerrymandering has played a key role in the nation’s extreme rightward tilt since 2010.

In Texas, five lawsuits are challenging the dilution of voters’ votes through the manipulation of the voting maps. But that kind of claim of “vote dilution” is similar to the legal arguments Roberts was objecting to way back when he worked for Ronald Reagan.

Gerrymandering does not mean only that thousands of people end up losing a real chance for representation. It also means that states as a whole lose incentives for elected representatives to come together for the common good. And it increases the odds of extreme measures being put forward, such as the Texas law that drastically restricts legal abortions and financially rewards zealots who help obstruct Constitutional rights protected by Roe v. Wade.

What is happening is that a handful of very wealthy extremists are attempting to reshape the United States in their own image, through a tsunami of dark money in our elections since 2010 that has also engulfed the U.S. Supreme Court, which has been packed by Federalist Society co-chair Leonard Leo and his secret funders to advance their agenda. Between voter restrictions, unfair maps, and the Big (but lucrative) Lie of voter fraud, the United States is on the brink of losing its democracy, the oldest continuous democracy in modern history.

President Johnson got foreign policy gravely wrong, but he was profoundly accurate about what was at stake then and now: “This right to vote is the basic right without which all others are meaningless. It gives people, people as individuals, control over their own destinies.”

The question today is whether that will continue.