Donald Trump is going to be president. That not only means he will be able to fill former justice Antonin Scalia's vacant seat on the Supreme Court, but he will also quite likely get to replace one of the liberal members of the court, such as Ruth Bader Ginsburg (age 83) or Stephen Breyer (age 78). As I previously reported, same-sex marriage and to a lesser extent abortion rights are both shielded from immediate legal threats, thanks to protections offered by previous Supreme Court decisions.
Unfortunately, the same cannot be said of voting rights, which are in serious and pressing danger from a Trump presidency.
"It’s not the apocalypse yet," Dale Ho, the director of the voting rights project at the American Civil Liberties Union, explained over the phone. "It could be the apocalypse. I’m not going to say it’s not going to be the apocalypse. But on voting, we’re obviously not in as good a position as we expected to be in, and we’re going to have to wait and see.”
Ho cautioned supporters of voting rights to not give up and lose hope. For instance, he noted, the Fifth Circuit Court, the most conservative of the circuit courts, struck down a restrictive Texas voter-ID law in July. Nine out of the court's 15 judges — five Democratic appointees and four Republican appointees — backed the decision to overturn the law.
This suggests, Ho said, "that we have penetrated the consciousness of moderate conservatives on this issue." For instance, he said, we cannot know for certain how Justice Anthony Kennedy, the court's most prominent middle-road conservative, is likely to rule on voting-rights cases.
But while it's not yet time to give up hope entirely and move to New Zealand, there is cause to be worried about the fate of voting rights in this country. The possibility of Trump's naming not just one but two right-wing justices to the high court creates two major sources of headaches for voting rights advocates.
The first is the current right-wing efforts to restrict voting rights.
"For the last five years, we were largely in a defensive posture on voting rights," Ho explained, noting that in 2013 Scalia joined the 5-4 majority in voting to weaken the Voting Rights Act. On the state level there has also been an onslaught of attacks on voting rights, from voter-ID and voter-registration restrictions to challenges of efforts to make the voting process itself easier. In response, there has been a rash of lawsuits attacking these restrictions.
“The hope was that, in the course of litigating these cases, a new set of legal rules, whether under the Voting Rights Act or under the Constitution, would emerge that would stop or at least put a dent into some of these voter suppression tactics," Ho continued.
Now the concern is that "many of these voter-suppression tactics that we’re seeing are either going to be left in place or spread," he added.
But with another conservative certain to replace Scalia, the chance of that happening has dimmed dramatically. If Trump has the chance to replace a liberal judge with a second conservative, this will make it particularly hard to cobble together five votes to shoot down these types of voting restrictions.
The second problem for voting rights advocates under a Trump presidency is that it's going to be much harder to expand the franchise. As Ho explained, there's a fledgling wave of efforts to challenge both partisan gerrymandering and felon disenfranchisement in the lower courts. Trump's election only diminishes the likelihood that the Supreme Court will agree, for instance, that it's wrong to bar people from voting for life because they committed one felony in their youth.
Existing restrictions on voting rights already in place did a lot to help elect Trump. As my colleague Matthew Rozsa reported, "swing states were able to restrict the franchise in ways that may have been consequential in Trump’s winning the Electoral College tally (he lost to Hillary Clinton in the popular vote)."
Rozsa wrote, "In Wisconsin, for example, voter ID laws disproportionately targeted nonwhite voters and, according to the executive director of Milwaukee’s Election Commission, resulted in the city’s turnout dropping by roughly 41,000 voters." He noted, "Trump won the state by fewer than 18,000 votes."
Trump campaigned on a platform that, at the very least, channeled and evoked white-nationalist sentiment. That dovetailed perfectly with restrictions on voting rights, which are often explicitly aimed at reducing the number of people of color who show up at the polls. In case there was any real hope that Trump didn't mean all that racist stuff he said to get elected, his initial staffing decisions suggest he's dead serious about pursuing an agenda rooted in white-supremacist ideology. (This type of ideology has always been centered on voter suppression, from the days of Jim Crow to the modern era of voter-ID laws.)
Steve Bannon, who served as the executive chairman for Breitbart News (frequently been described as a white nationalist website) and then became CEO of the Trump campaign, has now been appointed as Trump's chief White House strategist. This move cements Bannon's role as the Joseph Goebbels of the Trump operation and suggests that white nationalist ideology will be central to the Trump administration. In addition, Trump has hired for his transition team Kris Kobach, the Kansas secretary of state with a long career of working against immigrant rights and voting rights.
Voter suppression is about winning elections, but it's also about racism. In North Carolina, a voter-suppression law was struck down by the Fourth Circuit Court in August. In its decision, the court said that the law targeted "African Americans with almost surgical precision." Four Supreme Court justices were ready to side with the state and against the circuit court. But with Scalia's seat vacant, there was no fifth vote in favor of this overtly racist law.
With Trump at the helm and his well-documented enthusiasm for racism in play, getting a fifth vote to further restrict voting rights in the future is much less likely to be a problem.