SCOTUS screws us again

Prof. Richard Hasen's op-ed piece in the New York Times well summarizes today's Supreme Court decisions' corrosive effect on voting in the U.S. The headline's not an overstatement: "The Supreme Court is Putting Democracy at Risk".

Of Brnovich v. Democratic National Committee, Hasen writes:

Thanks to Brnovich, a state can now assert an interest in preventing fraud to justify a law without proving that fraud is actually a serious risk, but at the same time, minority voters have a high burden: They must show that the state has imposed more than the “usual burdens of voting.” Justice Alito specifically referred to voting laws in effect in 1982 as the benchmark, a period when early and absentee voting were scarce and registration was much more onerous in many states.

It is hard to see what laws would be so burdensome that they would flunk the majority’s lax test.

I don't know why Alito (I can't bring myself to use the title "Justice": the irony is too bitter) decided 1982 was a good year to set as a baseline but I can't say I'm surprised he went back in time nearly forty years. That's his M.O., to take us as far back as he can convince his fellow reactionaries to go.

With Brnovich, SCOTUS has rendered the 1960s-era Voting Rights Act an empty shell.

The other case, Americans for Prosperity v. Bonta, concerned disclosure of donors to charities. The Court significantly reduced the ability of states (or anyone else) to mandate such disclosure, even for law enforcement purposes (e.g., to detect campaign finance violations). Prof. Hasen explains the impact of today's decision:

In the Americans for Prosperity case, [Chief Justice Roberts] redefined the “exacting scrutiny” standard to judge the constitutionality of disclosure laws so that the government must show its law is “narrowly tailored” to an important government interest. This makes it more like strict scrutiny and more likely that disclosure laws will be struck down. As Justice Sonia Sotomayor wrote in her dissent, “Today’s analysis marks reporting and disclosure requirements with a bull’s-eye.”

The court’s ruling calls into question a number of campaign finance disclosure laws. Perhaps even more significant, it also threatens the constitutionality of campaign contribution laws, which are judged under the “exacting scrutiny” standard, too. Lower courts can now find that such laws are not narrowly tailored to prevent corruption or its appearance or do not provide voters with valuable information — two interests the court recognized in the past to justify campaign laws. A requirement to disclose a $200 contribution? A $500 campaign contribution limit? Plaintiffs in future cases are likely to argue that a law targeting small contributions for disclosure or imposing low contribution limits are not “narrowly tailored” enough to deter corruption or give voters valuable information, even if Congress or a state or municipality found such laws necessary.

I'll let Prof. Hasen describe the combined ugly results:

As in Shelby County and in the 2010 Citizens United case, which struck down Congress’s limit on corporate campaign spending, this conservative Supreme Court in today’s rulings shows no deference to democracy-enhancing laws passed by Congress, states or local governments.

...

If you put the Brnovich and Americans for Prosperity cases together, the court is making it easier for states to pass repressive voting laws and easier for undisclosed donors and big money to influence election outcomes.

The wealthy and powerful (but I repeat myself) already had a vastly disproportionate say over our laws and public policies. The U.S. Supreme Court, courtesy of the reactionary Justices who now dominate it, has strengthened that stranglehold.

Inequity of opportunity, wealth, and access to power has driven this country to a brink not seen since the Civil War. Think I'm exaggerating? Look at any objective assessment of the haves and have-nots in American society today — I recommend Robert Reich's The System — and the yawning gulf between them looks a lot like that which precipitated the French Revolution. (And Reich's book was published before the pandemic had really taken hold. Suffice to say, the pandemic didn't invalidate any of his assessments: it reinforced them.)

With these decisions, the Court has guaranteed that the Republicans who represent a minority of the population will reinforce their grip on power. The Court also has guaranteed that more younger voters will be discouraged from participating in elections — indeed, some of them will conclude that "democracy" is a sham, a rigged game, just as the most poisonous and irresponsible voices on the far right are loudly proclaiming (though for entirely different and false reasons).

The far-right majority in Brnovich cloaked their reasoning in concern for election integrity and public trust in the election process. The effect of that decision, and the indirect effect of Americans for Prosperity, will be to diminish both.

From Citizens United onward, this Court has undermined the body politic through its blinkered obsession with safeguarding the rich and powerful. When the history of the United States is someday written, this Court's contribution to the era's disunity and dysfunction — and perhaps to the nation's downfall as a democracy altogether — will be as infamous as doomed Marie Antoinette's "Let them eat cake".

Let me offer earliest congratulations on cementing your place in history, right-wing Justices.