History shows that ideals are oft times contradicted in practice; there’s no greater example than in a democracy that held Blacks as slaves but was founded on the idea expressed in the words, “We hold these truths to be self-evident, that all men are created equal…”. Thus the highest court in the land has a mixed and complex history of rulings on issues of citizenship and voting rights, rulings that are influenced in unpredictable ways by social and political change in the country.
One of the most fundamental changes in the country today is the fact that more and more Americans choose not to affiliate with either the Republican or Democratic Party—44 percent of the American electorate are now independents.
The most recent Supreme Court rulings in voting rights and redistricting cases raise new questions of how current Supreme Court decisions may be influenced by such contemporary developments. The path by which cases reach the Supreme Court and the progression of legal doctrine through court rulings is usually unseen except by lawyers and judges, but on the ground changes are carried into the courts. Supreme Court rulings reflect ongoing history in the country.
The 1857 Supreme Court Dred Scott decision denied citizenship to Blacks, slave and free, and was an attempt to quiet the crisis over slavery and end the debates that would ultimately lead to the Civil War. The 1896 Plessy v. Ferguson “separate but equal” doctrine in which the Supreme Court upheld racial segregation remained the standard of American law until it was repudiated and declared unconstitutional in the 1954 Brown v. Board of Education ruling. Charles Hamilton Houston, Thurgood Marshall and other leading African American attorneys developed the strategy and litigation over decades that finally led to the Supreme Court declaring that separate educational facilities are inherently unequal and racial segregation in public schools unconstitutional.
Whites Only Primaries
One of the many cases Thurgood Marshall, a founder of the NAACP Legal Defense Fund who would later become the first African American Supreme Court Justice, argued was the 1944 case Smith v. Allwright challenging the Texas Democratic Party’s exclusion of African Americans from voting in its primary elections. Since the Democratic Primary determined the winner of most elections in the South, this practice effectively disenfranchised bBack voters. In his argument before the Supreme Court, Marshall stated, “We maintain that the selection of candidates by a primary election pursuant to state statues is just as much a part of the elections machinery of the state as the actual election.” The Supreme Court outlawed the “Whites only primary” as unconstitutional. Today similarly closed party primaries disenfranchise independent voters of all colors.
In 1962 a Supreme Court ruling in the case Baker v. Carr found that redistricting did fall under the equal protection clause of the 14th Amendment and helped establish the legal principal of one person one vote.
These cases were long hard fought battles that gradually made their way to the Supreme Court in the context of a changing America and the Civil Rights movement. The denial of the right to vote based on race is unconstitutional. But the denial of the right to vote based on party affiliation or lack of party affiliation, though I and many believe it to be, has not yet been ruled unconstitutional.
New voting rights and redistricting cases are coming before the Supreme Court. On May 15 the Supreme Court let stand a federal appeals court ruling striking down a North Carolina restrictive voter ID law that the appeals court said was written “with almost surgical precision” to disenfranchise African American voters. On the same day the Supreme Court rejected challenges to open primaries in Hawaii and Montana, leaving in place rulings by the Ninth U.S. Circuit Court of Appeals upholding these states open primaries in which voters do not have to be affiliated with a political party to vote in primary elections.
In another case the Supreme Court struck down two of North Carolina’s majority Black Congressional Districts on the grounds that the districts were drawn based on race in a form of racial gerrymandering the court has ruled unconstitutional. This ruling is against the widespread practice by North Carolina and other states of packing African American voters into single districts that segregate Black communities and allows for the drawing of more numerous White dominated districts.
An unusual coalition of Supreme Court Justices came together with Justice Elena Kagan, writing for the majority, joined in agreement by Justices Clarence Thomas, Ruth Bader Ginsberg, Stephen G. Breyer and Sonia Sotomayor. Chief Justice John Roberts, Justices Samuel Alito and Anthony Kennedy dissented. (This case was argued before Justice Neil M. Gorsuch joined the court, therefore he did not participate in the decision.) The North Carolina NAACP brought the lawsuit against the practice of drawing district lines to concentrate Black voters in as few districts as possible, saying “racially biased ‘apartheid districts’ disenfranchise the power of the African American vote.”
In 2013 in a reversal of long standing voting rights law, the Supreme Court, in Shelby County v. Holder, struck down the provision of the 1965 Voting Rights Act that mandated designated states and counties that had a history of racial discrimination in voting, had to receive preclearance from the Justice Department before making any changes in their voting procedures. Congress had continually reauthorized the Voting Rights Act without change and in 2006 had reauthorized the law for another 20 years. In the book “Give Us the Ballot” by Ari Berman, of this ruling he writes, “Shelby County lost in the district court and appeals court, but by the time the lawsuit reached the Supreme Court, the bipartisan consensus that supported the Voting Rights Act for nearly fifty years, including in 2006, had collapsed.”
Voting Rights Act
Even before the 2013 Shelby County decision, conservative justices on the Supreme Court had expressed their view that past history of discrimination could not be used to justify the continued restrictions on the designated states. It fell to Congress to update the legislation. A Congress gridlocked in partisan battles has been blind to a changing electorate and the need to broaden primary voting beyond political party control.
Recent judicial challenges to the closed partisan primary and partisan gerrymandering revolve around questions of whether a voting process is fair and equal for all voters. More such cases are on their way to the Supreme Court. One such case is a 2016 ruling by the United States District Court for the Western District of Wisconsin that the State Legislature’s redrawing of State Assembly districts heavily favored the Republican Party and violated both the First Amendment and the Equal Protection Clause of the 14th Amendment because it aimed to deprive Democratic voters of their right to be represented.
What is the role of the Supreme Court at a time when partisan dysfunction and Republican and Democratic Party warfare threatens to engulf our democracy? Currently 50 percent of millennials in the United States, including in African American and Hispanic communities, identify as independents and are excluded from voting in most primary elections. The electorate is changing and there is substantial advocacy for judicial protection of equal voting rights for all voters including minorities, independents and young voters.
Underlying the crisis in our democracy is the loss of faith of the American people in their government. It will take a continuous infusion of top to bottom nonpartisan reforms linked to the soul of American democracy built on activism, struggle and sacrifice. The Supreme Court can play a contributing role in the process of revitalizing our democracy on new and more inclusive grounds.
Jessie Fields, M.D., is a Harlem-based physician and a member of the Board of Directors of Open Primaries, which advocates for open and nonpartisan primary systems.