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Josh Douglas’s earlier e-book left me optimistic. However that isn’t my normal vibe, so I used to be skeptical about studying his newest e-book, “The Court v. The Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights” (affiliate hyperlink). I see Prof. Douglas’s optimism may need modified some as properly. In it, Douglas makes a daring assertion that I didn’t anticipate to be coming from him: “The Supreme Court docket of the US is anti-democracy and anti-voter — and has been for a lot longer than you may suppose.”
Agree with the primary portion, disagree with the latter. I’m a pessimist.
The TL;DR: I extremely advocate this e-book, from which I discovered that it’s attainable to be extremely offended a couple of topic but additionally grateful for the messenger’s capability to obviously talk in an attention-grabbing, well-researched trend the explanation why I needs to be offended. I wished to throw this e-book so many occasions out of anger, however I didn’t as a result of I couldn’t put it down.
As Douglas’s e-book takes off, it appears that evidently the factor that reworked his optimism was January 6, 2021. He makes clear that the opposite establishments of our authorities not serve something however their very own quests for energy — not less than that’s the takeaway I acquired. And, for the rest of the e-book, Douglas walks us by way of the Supreme Court docket’s function in shaping our elections and establishments in ways in which threaten democracy, and on the very least persistently and damned close to religiously assault voters, the people who find themselves supposed to maintain our different establishments in examine.
Douglas begins off with a ruse. What seemingly is an optimistic enlargement of voting seems to be a entice. Anderson v. Celebrezze, 460 U.S. 780 (1983), a case that invalidated Ohio’s early submitting deadline for impartial candidates. As Douglas factors out for individuals who weren’t nonetheless alive or select to not bear in mind the Nineteen Eighties, Anderson had no selection however to run as an impartial. At that time, all the GOP was Reagan Nation. The case would in the end have been forgotten, however for Justice Stevens transferring away from strict scrutiny — a transfer that causes the case to be properly cited for help in future choices. Stevens’s new check, as Douglas factors out, causes the court docket to steadiness the burden on the voter and the state’s “asserted want for its voting guidelines.” That lesser customary opened the doorways for the flexibility of states to limit voters.
Douglas then pivots to Donald Duck. However on this hilarious story is a story of the pattern in direction of locked-in paper ballots, digital voting, and foreclosures. Burdick v. Takushi, 504 U.S. 428 (1992), holds that Hawaii’s prohibition on write-in voting didn’t infringe upon the voter’s rights beneath the First Modification. Throughout the oral argument questions arises (Douglas factors to Scalia) whether or not a vote for Donald Duck ought to rely. Burdick’s lawyer suggests it ought to rely as a protest vote. There’s a lesson right here: How the Supreme Court docket ridiculed the seriousness of the protest vote to decrease its significance, one thing Burdick himself factors out in discussions with Douglas. Douglas takes you on a beautiful journey of different protest votes as properly, some not so good. I’d have titled the chapter “Court docket says Duck all of it.”
So now that Douglas has let you understand which you can’t vote for simply anybody, there’s a query of who will get to vote. He launches into Crawford v. Marion County Election Board, a voter ID case. Douglas warns you right here that you just higher do the studying: “Crawford was mainly a 3-3-3 determination.” Three of the justices (Stevens, Roberts and Kennedy) had been extra versatile in considering that future challenges could possibly be completely effective, whereas three others would have upheld all of them (you possibly can guess).
Extra “who can vote constriction” comes earlier in historical past from Richardson v. Ramirez, a 1974 case permitting convicted felons from being barred from voting past their sentence and parole. The case is outrageous: A 3-month sentence and parole; 10 years later, he can’t register to vote nonetheless. Douglas makes use of this case as a method to launch into the enlargement of felonies inside the scope of the entice. Douglas writes poignantly, “[The decision] stated that the Structure permits states to fairly actually deprive those that are already marginalized in our society of their most elementary civil proper.” Florida, are your ears burning?
The subsequent chapters convey out the hits: Residents United, Bush v. Gore, and Shelby v. Holder. In every occasion, Douglas’s eye is on the impact on voters and on the whole and the disenfranchised particularly. Via this lens, Douglas can solely conclude that the upshot is that voters take a “backseat.” You must learn these chapters even when you suppose you understand the instances (and notably when you don’t), for Douglas rigorously dispenses of among the misperceptions on the market about every, whereas including character and flesh to the narrative.
In the event you weren’t depressed sufficient at this level, Douglas walks you thru the Supreme Court docket’s abdication in instances of gerrymandering. He additionally takes you thru makes an attempt to limit voter turnout by limiting entry in Brnovich v. DNC. That case arose out of Arizona legislation invalidating out-of-precinct voting and poll assortment, providers which may assist in areas the place voters endure lengthy strains and who aren’t rich. SCOTUS upheld these restrictions. Douglas just isn’t a fan: “Justice Samuel Alito made up the legislation.” Douglas isn’t susceptible to creating such claims. And he’s cautious to elucidate how Alito balked at the usual in oral arguments after which proceeded to make up his personal check.
In the event you haven’t thrown his e-book not less than 20 occasions by now, you aren’t listening to Douglas’s theme. And the subsequent two chapters go on to elucidate the place the subsequent threats to voters lie. I received’t spoil these, and hopefully haven’t spoiled among the takeaways of the e-book. Douglas does provide some hope and reforms. He wouldn’t be Josh Douglas if he didn’t cling to some optimism.
However I used to be struck studying the e-book as somebody who as soon as learn an analogous e-book, “The Lorax.” In every occasion, because the As soon as-ler takes down the bushes, a part of the ecosystem is misplaced. In an analogous vein, Douglas ends his e-book in a trend just like the As soon as-ler’s warning: “UNLESS somebody such as you cares a complete terrible lot, nothing goes to get higher.” The bushes, you see, are the issues which are essential to make our democracy perform.
SCOTUS has been clear reducing.
Purchase the e-book here (affiliate hyperlink).
LawProfBlawg is an nameless legislation professor. You possibly can see extra of his musings here. He’s manner funnier on social media, he claims. Please observe him on X/Twitter/no matter (@lawprofblawg. He’s additionally on BlueSky, Mastodon, and Threads relying on his temper. E-mail him at lawprofblawg@gmail.com.
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