When Judge Amy Coney Barrett sits for questions before the Senate Judiciary Committee in mid-October, no doubt Democrats will pepper her with questions about whether she would recuse herself in any Trump v. Biden election lawsuit to come before the Supreme Court. Although that’s an important question to ask, perhaps the bigger question is what it would mean in the long run for voting and election cases to have a sixth conservative justice on the Supreme Court.
In short, a Barrett confirmation would make it more likely we will see a significant undermining of the already weakened Voting Rights Act — the Court said on Friday it will hear a case involving the law. A 6-3 conservative Court might allow unlimited undisclosed money in political campaigns; give more latitude to states to suppress votes, especially those of minorities; protect partisan gerrymandering from reform efforts; and strengthen the representation of rural white areas, which would favor Republicans.
Let’s first clear away issues to the upcoming election: Of course Barrett should recuse herself from deciding any cases involving the 2020 presidential election. Trump’s repeated inappropriate comments that he wants her confirmed for the Court in time to “decide” the 2020 election are already causing reasonable people to worry about Barrett’s impartiality in resolving such disputes. A pledge to recuse would take this issue away from those who oppose her confirmation.
Barrett so far has resisted calls for her recusal, but for better or worse her confirmation probably wouldn’t have any effect on the outcome of the 2020 election — even in the unlikely event it came down to a Supreme Court decision. The Court has already heard a number of emergency motions concerning COVID-related election changes. In the most important of these so far, RNC v. DNC, the Court’s five conservatives ruled against extending the deadline for absentee ballots during Wisconsin’s April primary. With Justice Ginsburg gone, the Court is currently divided 5-3 on electoral issues, and a sixth justice will hardly matter in any post-election case that divides along partisan and ideological lines.
Some believe that Chief Justice Roberts would side with the liberals in a Trump v. Biden case in an attempt to preserve the legitimacy of the Court by avoiding a party-line vote for Trump. But if Roberts is concerned about legitimacy, he is unlikely to want to put Barrett in the position of being the swing vote. A Barrett vote in favor of Trump — the person who rushed her onto the Court for this very purpose — would look like payback. Roberts likely would prefer siding with conservatives in a 6-3 vote so Barrett is not the fifth, decisive vote handing the election to Trump. (If Barrett were not on the Court, a 4-4 split would leave standing whatever lower-court opinion was in place.)
The real concern about Barrett and elections requires looking ahead to the next five to ten years. When the Court was split 5-4 on ideological lines, the liberal justices could always try to pick off one of the conservatives in a voting case, like when Justice Anthony Kennedy sided with them in a 2015 case upholding the use of Arizona’s nonpartisan redistricting commissions to draw congressional districts and reduce partisan gerrymandering. Another time, Chief Justice Roberts sided with the liberals in a 2015 case upholding rules barring candidates for judgeships from personally soliciting campaign contributions, which was an important step in recognizing that judicial candidates can be subject to more restrictions on their campaign activities than other candidates to preserve public confidence in their impartiality on the bench.
The task for liberals becomes so much harder with a conservative 6-3 Court. Keep in mind that even on a more closely divided Court, conservatives prevailed in major voting cases: the 2010 decision in Citizens United v. FEC holding that corporations have a First Amendment right to spend unlimited sums supporting or opposing candidates for office; the 2013 Shelby County v. Holder case striking down a part of the Voting Rights Act requiring jurisdictions with a history of racial discrimination in voting to get federal approval before making voting changes; the 2008 decision in Crawford v. Marion County Election Board upholding Indiana’s strict voter-identification law, despite any proof that such laws prevent voter fraud.
We don’t know much yet about Barrett’s views in voting cases since she joined the bench in 2017. Her writings in this area are scant. She wrote an unremarkable opinion in a ballot-access case (joined by a Democratic colleague) rejecting a minor-party candidate’s attempt to get on the ballot. She has not weighed in as a judge in a campaign-finance case. In a law-review article, she pointed to Justice Scalia’s willingness to abide by some precedent he thought was wrong giving Congress stronger power to combat racial discrimination in the Voting Rights Act. By all indications, Barrett is a judge who would approach such questions openly and honestly. But she’s also a deeply conservative judge who is, like Scalia, committed to principles of originalism and textualism, so she’s likely to side with other conservatives as these issues come to the Court — on everything from gerrymandering to restrictive voting laws to money in politics. I made the same point about Justices Gorsuch and Kavanaugh being reliable conservative votes in these cases before they joined the Court, and the predictions turned out to be correct.
The Court could perhaps soon reverse its decision in the 2015 Arizona case, which would reempower politicians to draw their own congressional districts even if voters want nonpartisan redistricting commissions to do it. Roberts wrote a bitter dissent for conservative justices in this case, and if the Court is willing to revisit recent precedent, he almost certainly would have a majority on this issue.
On Friday, the Court said that next year it would take up another case from Arizona that concerns the Voting Rights Act. An appeals court held that the state engaged in intentionally discriminatory conduct against minority voters by limiting the ability to collect absentee ballots, which were a tool, especially on Native American reservations, to get out the vote. A finding of intentional discrimination would open up Arizona to further federal oversight of its elections under the Voting Rights Act, and my sense is that the Court took the case to reverse the appeals court’s holding.
Looking further down the road, the Court could strike down as unconstitutional, or severely limit, the reach of Section 2 of the Voting Rights Act, which has been used nationally to require the creation of majority-minority legislative districts and strike down or weaken strict voter-ID laws that especially burden minority voters. Some conservative justices on the Court have already suggested the act could be at least partially unconstitutional or that it should be read as not applicable to redistricting cases at all. This would be devastating to the cause of voting rights and the protection of minority voters.
Minority voting rights could be harmed in other ways by the Court. Over the next few years, the Court could resolve a question left open in its 2016 Evenwel v. Abbott decision and allow states and localities to draw districts with even numbers of eligible voters in them rather than people — a standard that would benefit Republicans, as fewer children and non-citizens live in rural whiter areas that tend to be represented by Republicans.
The Court could also make things much worse when it comes to campaign financing. Senator Mitch McConnell and others have already been pushing cases that would allow individuals and corporations to make unlimited campaign contributions directly to candidates. And some justices believe that those making contributions or expenditures in campaigns have a constitutional right to total anonymity from the public. This would make our political system much more prone to corruption, deprive voters of valuable information, and let the rich have even greater influence over election officials than they do now.
And as Republican legislatures continue to pass laws — in the name of preventing phantom voter fraud — that have the practical effect of making it harder to register and vote, some courts have pushed back. The pushback has come in the form of holding these laws unconstitutional under the 14th Amendment’s Equal Protection Clause or other parts of the Constitution. A 6-3 conservative Court is likely to see it differently and uphold more of these laws, perhaps even draconian laws allowing states to require people to produce a birth certificate or naturalization certificate before registering to vote.
There’s going to be a lot of attention paid in the next few weeks on how a Justice Barrett in theory could decide the 2020 election. We should be far more worried about the rules that would apply in dozens of elections after 2020.