The Court v. The Voters

In his new book, Joshua A. Douglas argues that the Supreme Court has taken a “hard turn toward anti-democracy and unequal voting rights in the last fifty years.” In making his case, Douglas canvases several infamous Supreme Court decisions—what he terms an “anti-canon of election law.” Some cases, like Citizens United v. FEC and Rucho v. Common Cause, are well known. But others are less familiar to most readers, such as Richardson v. Ramirez, the 1974 case that upheld the facial constitutionality of felon disenfranchisement laws. In Douglas’s view, the thread that connects these cases is a Supreme Court that has abdicated its responsibility to protect the right to vote and has adopted an unduly deferential approach to state regulation of elections.

The Court v. The Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights is essential for anyone who wants to understand the Supreme Court’s role in setting the rules of our democracy and what threats loom this year’s elections. As a professor of constitutional law and voting rights, I will recommend Douglas’s book to my students who are looking for a primer on election law. Here are five key takeaways from Douglas’s book.

First, even among lawyers, election law is notoriously complex. Further complicating matters is that the rules in other areas of constitutional law are tweaked or entirely rewritten for election law cases. Douglas, a law professor at the University of Kentucky, writes for a mainstream audience and translates esoteric areas of law—such as the web of regulations governing campaign finance—into easy-to-understand principles.

Second, Douglas’s book is chockful of fascinating facts not found in Supreme Court decisions, frequently drawing insights from interviews with the parties and lawyers involved in the litigation. For instance, Alan Burdick—who lost his challenge against Hawaii’s ban on write-in candidates—is “ashamed” that his name is associated with a 1992 decision that setback voting rights; he says now that he would never have brought the case had he known how it would end. Readers may also be intrigued to learn that Edward Blum, the conservative activist behind Shelby County v. Holder—invalidating the Voting Rights Act’s coverage formula—backed the litigation that ended affirmative action in higher education. Douglas also demonstrates that the civil rights community was concerned about the Democratic Party’s litigation strategy in Brnovich v. DNC. In this 2021 Supreme Court, the conservative majority set a high bar for vote-denial claims under Section 2 of the VRA, making it harder to challenge photo ID laws as racially discriminatory.

Douglas’s color commentary gives readers a rich understanding of why, when, and how lawyers decide to bring “cause” litigation while expanding his narrative to include the ordinary voters who bring these cases. Even a seasoned court watcher will learn something from reading Douglas’s book.

Third, on a more thematic level, Douglas captures how the Supreme Court has withdrawn from the proverbial political thicket over the past few decades. During the 1960s, the Supreme Court under Chief Justice Earl Warren helped democratize our nation: It established the one-person, one-vote rule for redistricting, invalidated poll taxes, and upheld the constitutionality of the Voting Rights Act. However, Douglas explains, the Court started pulling back in the 1970s. In recent decades, it has declined to invalidate laws that make it harder to vote and that entrench politicians in power. This trend predates the current 6-3 conservative Supreme Court; decisions from the 1980s laid the groundwork for rulings like Rucho, where the Court threw up its hand and allowed partisan gerrymandering to go unreviewed by federal courts.

Because Douglas focuses on the recent past, the memory of the Warren Court casts a long shadow. But a broader time horizon tells a somewhat darker story. As in many other areas, the Warren Court’s election law decisions are outliers in their progressive valence and rejection of originalism. Before the 1960s, the Supreme Court was rarely at the vanguard of voting rights. In its 1903 decision in Giles v. Harris, for example, the Court greenlit the mass disenfranchisement of Black men in the Jim Crow South. Put differently, the Court has not defended democracy for most of American history. In recent decades, therefore, the Court has reverted to the mean.

Fourth, Douglas charts the recent rise and fall of the so-called independent state legislature theory. Three conservative justices endorsed it in a concurring opinion in Bush v. Gore, and it featured prominently in several challenges to pandemic-era election rules during the 2020 election.

In its most potent form, this theory argues that the Constitution gives state legislatures sole authority over congressional and presidential elections. State constitutions—all of which provide greater protections for the right to vote than the federal charter—cannot limit the state legislature’s authority, the argument runs, since it comes solely from the U.S. Constitution. To understand the legal theories undergirding the 2020 election challenges, one needs to become familiar with the independent state legislature theory. True, the Court never took the bait in the 2020 election, despite several conservative justices raising the issue on the shadow docket. Douglas explains that the Court rejected the broadest versions of the independent state legislature theory in Moore v. Harper. Still, the door nevertheless remains slightly ajar for this year’s electoral contests.

Finally, Douglas goes beyond diagnosing the problems afflicting our democracy and identifying the Supreme Court’s role in our democratic backsliding. He proposes solutions. Drawing on his own scholarship, Douglas points to state constitutions, which offer far more robust protections for voting rights than the U.S. Constitution. Borrowing from his own advocacy in Kentucky, Douglas proposes a big-tent approach that cuts across partisan lines. In Douglas’s “Grand Election Compromise,” all eligible citizens should be allowed to vote with minimal burden, election rules would acknowledge concerns about voter fraud and seek to deter it, voters would be educated about the issues and mechanics of voting, and politicians could not write the rules of the game to benefit themselves. In our age of grievances and partisan hostility, a book that suggests commonsense solutions designed to appeal across the aisle is refreshing. Douglas’s book is a rare work that translates arcane election law into plain English while shedding light on the most important Supreme Court decisions on voting in the past half-century.