Earlier this month, the George Barrett Social Justice Program, in conjunction with the Voting Rights Advocacy and Rights Society and the American Constitutional Society, hosted Joshua Douglas, author of The Court v. The Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights.
Douglas, the Associate Dean for Research, J. David Rosenberg Professor of Law, and a University Research Professor at the University of Kentucky’s Rosenberg College of Law, teaches and researches election law and voting rights, civil procedure, constitutional law and judicial decision-making. He discussed his latest book, as well as the current and future state of voting rights in America.
At the outset of the discussion, Douglas referenced several cases in the 1960s in which the Warren Court acknowledged the U.S. Constitution’s protection of voting rights for citizens, establishing that related cases are subject to strict scrutiny. The Court v. The Voters looks specifically at cases from the post-Warren era that Douglas argues under-protected voter rights.
“When I tell people I wrote a book about how the Supreme Court has under-protected the right to vote, they assume I’m just talking about the past decade or two,” Douglas said. “But one of the claims in the book is that the foundation for under-protection of the right to vote started in the 1970s, ‘80s, and ‘90s, with a handful of cases.”
He pointed to Anderson v. Celebrezze (1983) and Burdick v. Takushi (1992) as the beginning of the Court’s failure to robustly protect the right to vote by neglecting to judge it under strict scrutiny. In Anderson, the Court used the heightened level of scrutiny conveyed in Warren-era cases Reynolds v. Sims (1964) and Harper v. Virginia Board of Education (1966). However, in Burdick, the Court applied a balancing test that weighed the state’s interests in running their own elections as they wish versus the burden a law imposes on voters.
“[The Burdick] verdict stands for this proposition that the state has a lot of deference [and] that the Court is going to defer to the state’s interest, even if there’s an infringement on the ability to cast the ballot in the way that a voter wants,” Douglas explained.
The Court’s decision in Burdick took on extra significance during the COVID-19 pandemic, Douglas contended, when several states refused to change voting rules after constituents asked that they be modified to limit potential exposure to other people.
“These cases went to the Supreme Court, and in almost all [of them] the Court upheld the state’s rules,” Douglas said. “Justice Gorsuch said the Constitution requires that the state legislatures get to decide this, not the federal judges or anybody else.”
These decisions are problematic, Douglas argued, because they open up the opportunity for state-elected officials to manipulate voting rules to improve their reelection chances.
Douglas outlined potential solutions to alleviate these problems with the current system, including 18-year term limits for the Supreme Court, which he contended might “lower the temperature on the Supreme Court nomination fight.” He also emphasized the ability of states to guarantee voting rights through legislation or constitutional amendments, and to promote voting access through early voting periods or online absentee ballots. These methods, Douglas contended, promote access, make it easier to vote, and act as integrity measures in disguise.
“I think what we need to focus on is a stage where making arguments not just about access, not just about integrity, but combining them, is politically possible,” Douglas said. “And thereby, we can avoid some of the issues that the Supreme Court has been harmful to.”
He concluded his talk with a message of hope and optimism about the future of voting rights in the United States.
“Ultimately, I’m a democracy optimist, because I at least try to recognize how we can improve things,” Douglas said. “That there’s an ability to make things better through everyday people.”