Democrats Have 1 Option Left

Today’s 6–3 Supreme Court decision is a hinge point for American democracy.

People protest in favor of voting rights outside of the Supreme Court in Washington, D.C.
Saul Loeb / AFP / Getty

Today’s Supreme Court decision further weakening the Voting Rights Act affirmed that the only way Democrats can reverse the wave of restrictive voting laws in GOP-controlled states is to pass new federal voting rights by curtailing the Senate filibuster.

Congressional action has long seemed the only realistic lever for Democrats to resist red states’ surge of voter-suppression laws, which are passing, as I’ve written, on an almost entirely party-line basis. In the state legislatures, Democrats lack the votes to stop these laws. And while the John Roberts–led Supreme Court—which opened the door to these restrictions by eviscerating another section of the Voting Rights Act in his 2013 Shelby County decision—always seemed unlikely to restrain the Republican-controlled states, today’s ruling from the six GOP-appointed justices eliminated any doubt.

Republicans will understandably view Justice Samuel Alito’s majority opinion upholding two disputed Arizona statutes as a green light to pass voting restrictions that could disproportionately limit the ability of minority groups to vote: “Even if the plaintiffs were able to demonstrate a disparate [racial] burden caused by [the Arizona laws], the State’s ‘compelling interest in preserving the integrity of its election procedures’ would suffice to avoid [VRA] liability,” Alito wrote. Republican legislators will likely interpret Alito’s repeated emphasis in his decision on the importance of stopping “fraud” and his somewhat gratuitous swipes at voting by mail, both of which echo themes from former President Donald Trump, as much more than a wink and a nod of approval for the laws that are proliferating across red states. (“Fraud is a real risk that accompanies mail-in voting even if Arizona had the good fortune to avoid it,” Alito insisted at one point.) If anything, Alito’s decision, which all the other GOP-appointed justices joined, underscores how thoroughly the determination to restrict voting access in the name of combatting illusory “fraud” has permeated every corner of the GOP. (Even the rare GOP critics of Trump’s discredited fraud claims, such as Representative Liz Cheney of Wyoming and Georgia Secretary of State Brad Raffensperger, have also defended the restrictive new state laws.)

While the ruling signals long odds for the Justice Department’s effort to challenge those laws (starting with Georgia’s) in court, civil- and voting-rights advocates might welcome the clarity the decision provides. It makes plain that if Congress doesn’t establish new federal standards, the nation is headed toward a two-tier voting system, with red states imposing ever-tightening restrictions that especially burden Democratic-leaning constituencies—young, minority, and lower-income voters.

It’s no coincidence that red states are imposing these restrictions precisely as Millennials and Gen Zers, who represent the most racially diverse generations in American history, are rapidly increasing their share of the total vote, as I wrote earlier today. The rise of those younger generations especially threatens the GOP hold on Sun Belt states such as Georgia, Texas, and Arizona, which Republicans now control through their dominance of older and non-urban white voters; in that way, the voting restrictions Republicans are enacting amount to stacking sandbags against a rising tide of demographic change.

After a Republican filibuster blocked their sweeping voting-rights bill, Senate Democrats are working to unify behind a more limited plan—and to persuade holdout Democratic Senators Joe Manchin and Kyrsten Sinema (and perhaps others) to change the filibuster rules to pass it. Following today’s decision, the demands from civil-rights groups on Senate Democrats and Biden to change the rules will grow even more intense.

“Our elected leaders need to wake up and start acting like the house is on fire—because it is, and this ruling pours more gasoline on the flames,” Nsé Ufot, the CEO of the New Georgia Project, said today in a statement that was echoed widely by other groups. “Black and Brown communities gave Democrats federal power to protect the vote and passing bills like the For the People Act is what we both expect and deserve.”

With more measured (though no less passionate) language, the fierce dissent from Justice Elena Kagan and the other Democratic-appointed justices seemed to be sending the same message. They obviously never endorsed any legislation, but their tone reminded me of the pleas to the Senate majority (particularly Manchin and Sinema) from Democratic legislators in the states passing these restrictive laws. We’ve done all we can here, the justices seemed to be saying: Now it’s up to Congress whether to protect democracy at what Kagan called “a perilous moment for the Nation’s commitment to equal citizenship.”