After demise of Supreme Court, states are the last line of defense for democracy

After demise of Supreme Court, states are the last line of defense for democracy
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With Brett KavanaughBrett Michael KavanaughSupreme Court sides with Native American hunter as Gorsuch joins liberals Clash with Trump marks latest break with GOP leaders for Justin Amash ACLU, Women's March to hold nationwide protests over abortion bans MORE’s confirmation, the Supreme Court will take an even sharper turn to the right. This means that more areas of social, civic, and economic life will fall within the sphere of the states to control, even if Democrats win back Congress on Nov. 6. State legislatures and governorships will be our last line of defense against regressive judicial decisions, which is why it is more important than ever to fight for Democratic control in the states.

The new Supreme Court will likely roll back the hard-fought constitutional rights to abortion and same-sex marriage. It could upend ObamaCare and continue to turn a blind eye to big money in politics. Policies surrounding all these issues will increasingly be determined by the elected officials in each state government. Two such issues are not only important for progressives, but they are absolutely critical to our democracy: voting rights and districting.

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Republican-controlled states have been emboldened to pursue voter suppression tactics because of the Supreme Court’s failure to serve as steward for the Voting Rights Act. For an entire century after the passage of the 15th Amendment, black people were kept from voting by state and local rules. The Voting Rights Act of 1965 changed this fundamentally — states were no longer able to use literacy tests and poll taxes to suppress registration and voting. The law also required states with the worst legacies of voting discrimination to clear voting rules changes with the federal government. 

The Voting Rights Act worked. In a few decades, voter registration rates among black people in the South surged (from 31 percent to 73 percent), as did the number of black elected officials across the country (from less than 500 to over 10,000). Later congressional reauthorizations expanded protections for language-minority communities. The Justice Department and federal courts kept more than 3,000 discriminatory voting laws and rules from implementation. 

Despite the Voting Rights Act’s transformative effect, the Supreme Court gutted it in the 2013 Shelby County v. Holder opinion, by invalidating the federal review of changes to state voting laws. Chief Justice John Roberts’ rationale was that federal review had become unnecessary, because “the Nation is no longer divided” among those with and without a recent history of voter suppression. This, despite the fact that following 2010, half of all states (nearly all under Republican rule) had passed scores of laws making it harder to for Americans to vote.

The Kavanaugh confirmation means that the court will continue to ignore voter suppression at the federal level, and it will be up to each state to ensure that all citizens have free and fair access to elections.

Justice Anthony Kennedy had long been the Goldilocks member of the court when it comes to partisan gerrymandering. His 2004 concurrence in Veith propped the door ajar to allow challenges to districting based on partisan gerrymandering, but he hadn’t yet found a legal theory that was just right. His replacement with an even more conservative justice means that there is little chance the Supreme Court will be interested in finding a legal standard for when districts have been unconstitutionally gerrymandered.

Even this past year, when Kennedy was still on the court, it declined to take a stand against partisan gerrymandering (Gill v. Whitford; Benisek), racial gerrymandering (Abbott v. Perez), and state-based voter suppression in the form of voter purges (Husted v. A. Philip Randolph Institute).

The court has demonstrated that it is not in the corner for voting rights and fair districts. This was true before Kavanaugh and will be even more true now that he is confirmed. The bottom line is that, as the Supreme Court marches to the right, more power rests with states to set policies on issues that affect all people living in this country. Going forward, the battle must be waged at the state level, by electing progressive state legislators.

Gabrielle Goldstein is cofounder and political director at the Sister District Project.