Democracy’s Distrust: The Supreme Court’s Anti-Voter Decisions as a Threat to Democracy

abstract. This Essay explores perceived biases within recent Supreme Court decisions affecting voting access and their implications for American democracy. The Supreme Court plays a pivotal role in enforcing democratic principles. This Essay examines historical and contemporary examples of judicial decisions that have privileged powerful political candidates and legislatures to the detriment of voters. As a lens for assessing these decisions, the Essay introduces a conceptual dichotomy between candidate-centered and voter-centered perspectives. The Essay argues that the Court’s prioritization of the former perspective has forced citizens to bear the burden of antidemocratic decisions, which in turn has led to widespread distrust of democratic ideals, such as adherence to the rule of law, equal treatment, and fairness. This Essay will discuss these concerns and provide an analysis of the Court’s influence on democracy.

Introduction

Trust in our democratic institutions, including courts, has plummeted over the past several decades. In April 2024, a Pew Research Center study found that less than thirty percent of Americans trust their government.1 In 1958, when Pew began its trust-in-government study, that number stood at about seventy-three percent.2 In a 2021 Pew study, eighty-five percent of Americans believed the “political system needs major changes or needs to be completely reformed.”3 Majorities of 2023 Pew survey respondents supported “term limits for Congress, age limits for federal elected officials and Supreme Court justices, and abolishing the Electoral College.”4 This skepticism of government reflects a deep unease about whether our institutions are truly living up to our democratic ideals.

Granted, it is difficult to define a true democracy, and scholars cannot agree on a single definition. Eugene Mazo posits that definitions of democracy span a continuum: certain theories require only “minimum standards,” such as elections, while more maximal theories “require[e] democracy also to encompass political, and ultimately group, equality.”5 At its etymological core, democracy literally means “rule by the people.”6 While this fundamental principle remains consistent, the definition of “the people”—including identification of who may participate in governance and to what extent—varies, resulting in different manifestations of democratic governance.

Because “democracy” is so challenging to define, the term is particularly susceptible to varied interpretations by the Supreme Court. Scholars have long questioned the Court’s role in the democratic process and argued over whether the Court has adequately and appropriately played its part.7 Indeed, it has been suggested that “the Supreme Court has not embraced democracy as a core constitutional value, or recognized each citizen’s fundamental right to meaningfully participate in governance.”8 Some of this skepticism derives from the fact that the Court is not accountable to the majority and is not necessarily responsive to the majority’s will—a structural phenomenon that has long troubled scholars wrestling with the “counter-majoritarian difficulty” posed by an unelected Court.9 This tension with majoritarian concerns was starkly evident in Dobbs v. Jackson Women’s Health Organization.10 Indeed, a majority of Americans support abortion rights.11 Justice Alito’s majority opinion argues that the ruling restores the issue of abortion to “the people’s elected representatives,”12 framing it as a return to democratic deliberation. This perspective suggests that decisions about abortion laws should be made through legislative processes rather than judicial mandates. However, this invocation of democracy has been critiqued for its limited and inconsistent understanding of democratic principles. Scholars argue that in Dobbs, the Supreme Court’s “invocations of democracy” displayed “a romanticization of democracy rather than its current reality.”13 Scholars Melissa Murray and Katherine Shaw contend that this appeal to “democratic deliberation” was rhetorically powerful but fundamentally flawed.14

Since the Court issued this decision, trust in the institution has declined significantly; according to an Annenberg Public Policy Center (APPC) survey, less than half of Americans now trust the Supreme Court to act in their best interests.15 University of Pennsylvania Professor Matthew Levendusky, who directed the APPC survey, explains that Dobbs profoundly altered views of the Court and that “the Court’s rulings since then have done little to change these perceptions.”16 Accordingly, the Roberts Court has been called biased,17 partisan,18 and elitist.19 Yasmin Dawood notes that this elitism aligns with the country’s origins: “[T]he Constitution established an elitist democracy in which power was intended to be held for the most part by a privileged few who were to have an outsized influence on the course of governance.”20 She argues that “similar themes . . . are evident in the Supreme Court’s recent election law decisions.”21 But Dawood’s critique also emphasizes the role of the people as an essential check on the excesses of those who sought to govern: “The role of the people was anticipated to be episodic but their participation, while contained, was nonetheless crucial as a preventative defense against the abuse of power.”22 Thus, there have always been at least two centers of authority in electoral politics: those who seek and obtain power through elections, and the voters who support and—just as crucially—limit them. This prompts crucial questions: Where does the Supreme Court stand in relation to these two centers of authority, and what role does it play in mediating between them? Is it a guardian that expands and protects voters and their rights, or a gatekeeper that prefers the powerful?

Elections and voting are the linchpins of our democracy. When a candidate or a court hijacks the ability of voters to enjoy an equal opportunity to participate in the electoral process, democracy is denied. In a healthy democracy, the perspectives of both voters and candidates should presumably be oriented toward the same goals: allowing those entitled to vote to do so, and counting each vote fairly. Moreover, all participants faithful to democracy should want the candidate who received the majority of votes cast within the relevant electoral framework to be declared the winner. However, in this Essay, I argue that the Roberts Court has demonstrated a systematic preference for those in power and those seeking it over voters in democratic matters.23 This preference manifests in decisions that favor candidates and incumbent legislatures while disadvantaging voters. The Court’s decisions favoring the powerful over the people threaten the careful balance of voter-centered and candidate-centered perspectives that democracy requires.

Other scholars have written about the Court’s anti-voter jurisprudence. Richard L. Hasen provides a comprehensive analysis of election law’s current and future state. He writes that the field of election law is stagnant and “retreating from the protection of voters,” and argues for a “pro-voter approach.”24 Joshua Douglas argues that the Supreme Court’s election-law decisions contribute to voter suppression and disenfranchisement and adversely impact communities of color.25 He highlights the ways that the Court’s recent rulings diminish the right to vote.

While in agreement with these scholars, this Essay argues that we should view the Court through an additional prism: one where the Court’s preference for the powerful dictates its candidate-friendly decisions, to the detriment of voters. Accordingly, this Essay will discuss the role that the Supreme Court has played in fostering distrust in democracy through its pro-candidate, anti-voter decisions. Part I discusses the redefinition and distortion of terms in the election vernacular in ways that have tended—both historically and contemporaneously—to privilege the perspective of the powerful over that of the people. Part II assesses the Supreme Court’s role in promoting or obstructing democracy through various eras and the impact of its interventions on democratic principles. Part III focuses on the Roberts Court and several of its decisions that, this Essay argues, have privileged the powerful and penalized the people through a candidate-centered approach. In closing, Part IV argues that we have become over-reliant on the Supreme Court as an institution that can safeguard democracy. We must rather look to “We the People” to ensure that democracy endures.

I. the language problem distorting democracy

America, we have a language problem. Political operatives are skilled at manipulating the plain and traditional meanings of words to allow antithetical meanings to become prevailing definitions, which in turn fosters a fundamental distrust of democracy. Misinformation and disinformation spread false or misleading information and create confusion and distrust. And the oversaturation of misleading information can lead people to no longer trust official sources of information or have confidence in their understanding of important issues. To be clear, voter deception is not a new phenomenon, but the tools of voter deception have become increasingly efficient. As Ronald J. Krotoszynski observes, “Throughout time and history, incumbent office holders routinely have sought to exploit voters’ lack of access to full, complete, and truthful information in order to retain their grip on power. . . . Contemporary efforts at voter deception can be accomplished on a massive scale, at very low cost, with great precision, and with an astonishingly high success rate.”26 Misinformation and disinformation “distort[] the process of democratic deliberation and, ultimately, undermine[] the electoral process itself. At this point, it is clear that disinformation and misinformation constitute a clear and present danger to democratic deliberation and, more generally, to democratic self-government.”27

Unfortunately, this country has had a language problem since its founding. “We the People,” a foundational and profound phrase, is featured in the Preamble of the U.S. Constitution, epitomizing the democratic aspirations of a nation founded as an alternative to monarchical rule.28 But who exactly comprises “We the People”? This fundamental question has shaped American democracy since the drafting of the Constitution in 1787, when citizens who had recently overthrown the autocratic governance of the British monarchy sought to establish a system that allowed them a voice in their own governance.29 Yet the Constitution largely delegated control of elections and voting qualifications to the states.30 Most states restricted voting to white, male property owners, creating a narrow definition of democratic participation that limited the phrase “We the People” to a privileged few.31

With voting rights reserved almost exclusively for white, male property owners, the three-fifths compromise further exemplified this proscription, counting enslaved individuals as fractions of persons for representation while denying them any citizenship rights.32 This foundational prohibition set a precedent for a prolonged struggle over the inclusiveness of American democracy as the concept of “We the People” continued to evolve. As a result, the prevailing conception among the states held that “We the People” was reserved for certain persons who alone possessed the full capacity to exercise the rights and privileges of citizens under the Constitution. Challenging that discriminatory conception, Frederick Douglass proclaimed:

But it has been said that Negroes are not included within the benefits sought under this declaration. This is said by the slaveholders in America . . . but it is not said by the Constitution itself. Its language is “we the people;” not we the white people, not even we the citizens, not we the privileged class, not we the high, not we the low, but we the people; not we the horses, sheep, and swine, and wheel-barrows, but we the people, we the human inhabitants; and, if Negroes are people, they are included in the benefits for which the Constitution of America was ordained and established.33

Over the centuries, the interpretation of this phrase has evolved. But in recent years, the Supreme Court has played a pivotal role in narrowing the scope not only of “We the People,” but of democracy itself.34

Our predicament—allowing the distortion of language to promote the powerful few over the majority—persists. Language is inextricably tied to democracy. The words written in the Founding documents profoundly shape the aspirational democratic principles by which we seek to live. But the obvious gap between rhetoric and reality can lead to skepticism about whether those democratic ideals continue to serve as a guide. In recent years, Republican politicians have proved particularly adept at generating new terms and refashioning old terms in the election nomenclature.

For example, President Donald Trump and his attorneys have repeatedly claimed that his criminal prosecutions constitute “election interference.”35 This is a distortion of the traditional meaning of the term. “Election interference,” in any ordinary sense of the term, does not describe the process of calling a candidate to account for alleged criminal wrongdoing in court under generally applicable laws.36 Rather, “election interference” properly refers to efforts to interfere with voting, including voter intimidation, closing polling places early, and voter deception.37 The original meaning of election interference was thus voter-centered and focused on the ways in which voters were prevented from exercising their constitutional right to vote. In contrast, the new meaning is candidate-centered: it is rooted in the perspective of aggrieved candidates who invoke their right to seek office as a shield against prosecution for unlawful behavior.

Consequently, the meaning of the term “election interference” has been inverted and is now being used to undermine the health of democracy. Trump’s claims of political persecution are unfounded. Repeated claims of election interference or fraud without substantial evidence can erode public trust in the electoral process. When people lose faith in the integrity of elections, they may become disillusioned with the democratic system.38 Moreover, questioning the legitimacy of election results can undermine the authority of elected officials, which can lead to a lack of respect for the rule of law and the decisions made by those in power.39

Likewise, “election integrity” has become synonymous with unfounded allegations of voter fraud.40 President Trump has raised countless claims of “fraud” and faulty ballot counting that, though unfounded, have helped spread distrust in the integrity of the electoral system.41 Indeed, for many today, the term “election integrity” evokes the specters of fraud, “stopping the steal,”42 and disinformation.43 Ironically, this warped rhetoric around election integrity threatens to undermine the actual integrity of elections. For example, while claiming to care about fraud, organizations on the political right have taken steps to dismantle a key fraud-prevention tool, the Electronic Registration Information Center (ERIC).44 ERIC is a nonpartisan tool used to maintain accurate voter rolls and reduce fraud by identifying ineligible registrations.45 Despite the effectiveness of ERIC, several states, influenced by claims of fraud after Trump’s 2020 loss, withdrew from the program.46 This trend has accompanied broader legislation to restrict voting access. Ten states, for instance, have curtailed the use of ballot drop boxes. 47 Ohio and Iowa now allow only one drop box per county, while Georgia restricts counties to one box per 100,000 voters.48 These measures, rooted in baseless fraud claims, represent a broader effort to restrict voter access under the guise of election integrity.49 Historian Carol Anderson likened the new restrictions lacking any evidence of fraud

to a quack doctor holding up an X-ray, pointing to something going, “See, see, see?” and getting the person to believe that there’s something really there on that X-ray that requires expensive and dangerous surgery . . . . We had an election that was amazing in the midst of a pandemic. And instead of applauding themselves for it, they went with a Trumpian lie.50

As with other terms, the understanding of “election integrity” thus focuses more on the perspective of an aggrieved candidate or political party than on the perspective of the voter, and it is too often wielded as a vehicle to effectuate voter suppression.

This candidate-centered perspective ignores the cries of disenfranchised voters. The primary question becomes how or why the candidate lost. Claims of election interference are made as retrospective explanations for the reality of defeat. Prospectively, cries of “election interference” are made in reference to a candidate’s inability to campaign or to appear on the ballot—even where there are substantial legal arguments for such restrictions.51 Thus, familiar terms like “election interference” have taken on unfamiliar, candidate-centered meanings. American rhetoric and jurisprudence need a correction: our focus should not center on candidates but on how the democratic process involves and impacts voters.

II. denying or defending democracy: the supreme court’s role

The Supreme Court has a pivotal role to play in preserving democracy. The decisions of the Court can either expand democracy by fostering inclusion—a voter-centered approach—or can undermine democracy by upholding exclusionary policies and practices. From the 1870s through the early twentieth century, the Supreme Court curtailed the protections of the Fifteenth Amendment, often by refraining from enforcing voting-rights statutes and from hearing cases that challenged racial discrimination in voting, thereby allowing discriminatory practices to persist. For example, the Court’s decision in Giles v. Harris undermined the Fifteenth Amendment’s guarantee of racial equality in voting52 and thus enabled the entrenchment of Jim Crow-era voter suppression in the South.53 The Court conceded that, even if the racist Jim Crow restrictions on voter registration violated the Fifteenth Amendment, the Court either could not or would not address such “political wrong[s].”54

Unlike its predecessors, the Warren Court (1953-1969)55 embraced a pro-democracy jurisprudence that significantly broadened the scope of Americans eligible to participate in democracy. Alongside the Marshall Court (1801-1835), the Warren Court presided over one of the two most impactful periods in constitutional law.56 Through its pro-democracy rulings, the Warren Court played a key role in fostering democratization, inclusion, and the expansion of civil rights and liberties. Baker v. Carr, for example, established that redistricting issues are justiciable, thus allowing for judicial review of unequal districting plans.57 Two years later, in Reynolds v. Sims, the Court firmly established the principle of “one person, one vote,” emphasizing that “the right of suffrage is a fundamental matter in a free and democratic society.”58 As the Court highlighted, the franchise must be exercised “in a free and unimpeded manner” because it is “preservative of other basic civil and political rights,” which in turn means that any restrictions on it must be “carefully and meticulously scrutinized.”59 Expanding on this voter-centered doctrine, the Court held in Harper v. Virginia Board of Elections that poll taxes violated the Equal Protection Clause of the Fourteenth Amendment, reasoning that “[v]oter qualifications have no relation to wealth nor to paying or not paying this or any other tax.”60 Through these rulings, the Warren Court broadened the concept of “We the People” by ensuring that all citizens, regardless of economic standing, could actively participate in the democratic process.61

If we conceptualize democratic participation as a mountain, the Warren Court era represents the peak, where the principles of inclusion reached their highest expression. The periods before the Warren Court can be likened to the arduous climb toward this pinnacle, and the eras following it, a gradual descent. This descent was subtle at first, as the Burger Court (1969-1986) displayed mixed adherence to Warren Court principles, later followed by a more pronounced shift under the Rehnquist Court (1986-2005).62 The 1976 case of Buckley v. Valeo63 is illustrative: the Burger Court upheld campaign-contribution limits to prevent corruption—a voter-centered approach—but simultaneously invalidated campaign-spending restrictions, emphasizing candidate autonomy.64 The Rehnquist Court continued the latter trajectory. For example, in Shaw v. Reno, the Court’s analysis of racial gerrymandering under the Equal Protection Clause reflected a more restrictive approach to voting-rights protections.65 Shaw v. Reno66 marked a significant shift in how racial considerations were treated in redistricting, promoting a less voter-centered approach by emphasizing the shape and intent of districts over the practical impact on voters. In this case, the Court ruled that North Carolina's creation of a bizarrely shaped majority-Black district constituted an unconstitutional racial gerrymander.67 The Court’s reasoning focused on the Equal Protection Clause, asserting that districts drawn predominantly based on race—even with the intention of enhancing minority representation—could undermine the principle of equal treatment under the law.68 This decision shifted the focus from the practical effects of redistricting on voter representation to the process and intent behind the district’s creation. By prioritizing the aesthetics of the districts and the avoidance of racial classifications, the ruling arguably moved away from centering the needs and interests of voters, particularly minority groups. Through these shifts, the Court has gradually retreated from the expansive democratic vision that defined the Warren Court; that trend has continued under the Roberts Court, as discussed in Part III.

The normative stakes are significant. In Brnovich v. Democratic National Committee, Justice Kagan opined that “[i]f a single statute represents the best of America, it is the Voting Rights Act. It marries two great ideals: democracy and racial equality . . . . If a single statute reminds us of the worst of America, it is the Voting Rights Act. Because it was—and remains—so necessary.”69 The Supreme Court plays a pivotal role in preserving the principles of democracy by safeguarding rights, ensuring equality, maintaining checks and balances, upholding the rule of law, protecting the electoral process, and promoting judicial independence. It protects individual rights and liberties that are essential for a functioning democracy, such as freedom of speech, freedom of assembly, and the right to vote. By ensuring these rights are upheld, the Court fosters an environment in which democratic processes can thrive.

III. the roberts court: privileging the powerful, penalizing the people

While the Warren Court reinforced the strength of the Reconstruction Amendments to maintain democratic principles and a voter-centered approach, the Roberts Court has moved in the other direction. Overt examples of discrimination and disenfranchisement have lessened in this era, but the impact on democracy remains. As Michele Goodwin notes, in the realm of voting-rights violations, the Roberts Court has failed to acknowledge contemporary forms of voter suppression.70

A. Weakening the Voting Rights Act in Shelby County and Brnovich

The Roberts Court’s refusal to confront contemporary forms of voter suppression has been evident in decisions related to voting rights, campaign finance, and the balance of power in government. Together, these cases work to disenfranchise and silence the voices of those who operate outside of traditional power structures. Key rulings on issues from gerrymandering to campaign-finance reform have dramatically reduced the political influence of ordinary citizens in favor of the powerful within a short span of time. Particularly troubling from a voter-centered perspective is the one-two punch delivered to the Voting Rights Act of 1965 (VRA)71 by Shelby County v. Holder72 and Brnovich v. Democratic National Committee.73 With these two cases, the Court substantially diminished the VRA’s ability to preempt voter discrimination and shifted the focus to the states.

In Shelby County, the Supreme Court invalidated Section 4(b) of the VRA, which established criteria for federal preclearance of voting-law changes in jurisdictions with histories of discriminatory practices.74 The majority considered the preclearance requirements outdated and intrusive on states’ “equal sovereignty.”75 Chief Justice Roberts concluded that the legislative formula for preclearance must mirror “current conditions” in order to justify differentiating between the states, implying that the issues of racial discrimination in voting were largely resolved.76 He wrote that “[n]early 50 years later, things have changed dramatically. ‘Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.’”77

However, the significant progress made in addressing such discrimination was largely attributable to the effectiveness of the VRA itself, particularly Sections 4(b) and 5.78 In her dissent, Justice Ginsburg poignantly criticized the majority’s reasoning, likening the elimination of preclearance—despite its proven effectiveness—to “throwing away your umbrella in a rainstorm because you are not getting wet.”79 Despite Ginsburg’s warning, the Roberts Court demonstrated in Shelby County that it is willing to curtail the VRA’s protections for voters of color based on abstract concerns about federalism and assertions that the landmark law has already effectuated enough progress. Indeed, Michele Goodwin has observed:

At the same time, continued voter suppression—in the form of systemic and persistent partisan gerrymandering, racial gerrymandering, mandated payment of fines and fees as a condition to vote, deceptive robocalls, barriers to assistance, voter intimidation, strict voter identification laws, the broadscale and strategic closing of voter registration sites, ex-felon disenfranchisement laws, lack of early voting, and polling place relocations and reductions—apparently falls short [of violating voters’ rights to cast their ballots].80

The Roberts Court considered the protections of Section 5 a burden on the states and failed to address the protections provided to the voters.81

While Shelby dismantled Section 4(b) of the VRA, Brnovich diminished the protections offered to voters under Section 2, which provides a nationwide prohibition against discrimination in voting.82 Section 2 prohibits any voting qualification or procedure that “results in [the] denial or abridgment of the right . . . to vote” based on race, color, or membership in a language minority group.83

In Brnovich, the Court upheld restrictive Arizona voting laws concerning precinct voting and ballot collection, instituting a new standard for Section 2 vote-denial claims that favors the state and burdens voters.84 These laws disproportionately affected minority voters—a point that the dissent emphasized.85 Instead of applying the results test, Justice Alito developed an “equally open” examination that supplants an inquiry into the voter’s perspective and advantages the state and its elected officials. The majority attempted to redefine and realign the wording of Section 2 of the VRA in a way that diminished voters and elevated elected officials’ ability to burden the right to vote. The Court opined that

equal openness and equal opportunity are not separate requirements. Instead, equal opportunity helps to explain the meaning of equal openness. And the term “opportunity” means, among other things, “a combination of circumstances, time, and place suitable or favorable for a particular activity or action.” Putting these terms together, it appears that the core of § 2(b) is the requirement that voting be “equally open.”86

Additionally, Alito, writing for the Court, introduced five new “guideposts” for assessing future vote-denial claims under Section 2’s “totality of circumstances” requirement: (1) “the size of the burden imposed by a challenged voting rule,” (2) “the degree to which a voting rule departs from what was standard practice when § 2 was amended in 1982,” (3) “[t]he size of any disparities in a rule’s impact on members of different racial or ethnic groups,” (4) “the opportunities provided by a State’s entire system of voting,” and (5) the “strength of the state interests served by a challenged voting rule.”87

The Court considered the continued application of the disparate-burden test a “radical project” and rejected the consideration of historical factors in examining contemporaneous voting discrimination.88 The Court found the disproportionate impact on minority voters in Arizona “unremarkable” and consistent with the “usual burdens of voting,”89 thereby disregarding the voters’ perspective and elevating the state’s unsubstantiated fraud claims.

Brnovich effectively narrowed the scope of Section 2 of the VRA, weakening safeguards against racially discriminatory voting laws and making it easier for states to enact suppressive measures. Scholars believe that the new criteria are “intended to, and will, protect the states against many Section 2 lawsuits. They will make Section 2 claims less likely to be filed by plaintiffs, and more likely to be lost when they are.”90 Given that Section 2 aims explicitly to protect voting rights from infringement on account of “race or color,” persons of color will bear the burden of these augmented criteria. Justice Kagan admonished the Court for departing from Congress’s “broad intent,” made manifest by its “broad text,” to ensure that voters of color “can access the electoral system as easily as whites.”91 Kagan also noted the lack of deference to Congress.92 The absence of deference to Congress is particularly striking when compared with the remarkable level of deference afforded to state laws discussed in the next Section.

B. Deferential Democracy: States and Standards

In the opera Porgy and Bess, the main character Porgy sings, “I got plenty o’ nuttin’ and nuttin’s plenty for me.”93 In the cases discussed in this Section, the Supreme Court has effectively ruled that the states are not required to provide evidence of their rationale for passing legislation that harms voters. The severity with which the Court has restricted Congress’s power to ensure representative voting through the VRA stands in marked contrast to the extreme deference with which the Court treats efforts by state legislatures to prevent voter fraud. Accordingly, the deference the Roberts Court affords legislative bodies, except Congress,94 amounts to requiring nuttin’ to implement anti-voter legislation. The Court has found that the “the State’s interest in counting only the votes of eligible voters” and ensuring “orderly administration and accurate recordkeeping” is “a sufficient justification for carefully identifying all voters participating in the election process”—even when the state’s methods have raised voting-rights concerns.95 Unfortunately, “[t]he Supreme Court has already held that deterring voter fraud is a legitimate policy to enact an election law, even in the absence of any record evidence of voter fraud.”96 Under the extreme lower standard for the state, merely saying the words (for example, asserting without evidence that voter fraud exists) meets the nonstandard standard.

In Rucho v. Common Cause, the Court held that partisan gerrymandering is a political question outside the competence and jurisdiction of federal courts.97 It was a curious result given decades of precedent of courts “remedy[ing]violations of constitutional rights resulting from politicians’ districting decisions,” and given the harm that partisan gerrymandering does to democracy.98 Nonetheless, despite its acknowledgment in Rucho that partisan gerrymandering as a tactic is “incompatible with democratic principles”99 and “leads to results that reasonably seem unjust,”100 the Court in Alexander v. South Carolina State Conference of the NAACP made it easier for states to get away with racial gerrymandering by upholding South Carolina’s congressional map, which effectively gutted the voting power of Black residents in Charleston.101 Justice Kagan in dissent argued that “[i]n every way, the majority today stacks the deck against the [c]hallengers.”102 She further objected to the majority’s ruling in favor of the state despite the “extensive evidence, including expert statistical analyses, that the State’s districting plan was the product of racial sorting” and despite the state “offer[ing] little more than strained and awkward denials.”103 Moreover, when “racial classifications in voting are at issue, the majority says, every doubt must be resolved in favor of the State, lest (heaven forfend) it be ‘accus[ed]’ of ‘offensive and demeaning’ conduct.”104

The Court’s asymmetrical treatment of Congress and state legislatures maps onto the Court’s asymmetrical treatment of voters and candidates. The Court is very lenient toward state efforts to prevent voter fraud, even in the absence of any empirical evidence. This is a candidate-centered view rooted in extreme deference to the states. Specifically, it privileges incumbent candidates who benefit from the electoral inertia afforded by gerrymandered districts. Voters—as well as prospective challengers—lose out. But the Court conducts an exacting review of efforts to vindicate voting rights under the VRA. The Court is thus upending the priorities of both the Fourteenth and Fifteenth Amendments, which by their very terms prevent states from curtailing fundamental civil and political rights. The Roberts Court now does the opposite by allowing states to privilege candidates and restrict voting, while preventing Congress and lower federal courts from enforcing constitutional protections to preserve voting rights.

C. Privileging the Powerful over the People: A Case Study Comparing Trump v. Anderson and Merrill v. Milligan

An examination of Trump v. Anderson105 and Merrill v. Milligan106 can help draw into particularly sharp focus the contrast between how the Court treats the concerns of voters and how it treats the concerns of candidates.

In November 2021, a coalition of civil-rights organizations and Black registered voters brought suit against the Alabama Secretary of State and the co-chairs of the state legislature’s redistricting committee.107 The lawsuit challenged Alabama’s congressional redistricting plan,108 which failed to create a second Black majority or plurality district in the state’s “Black Belt,” a multicounty, historically rural region characterized by stark socioeconomic disparities and some of the nation’s highest rates of poverty. 109 The plaintiffs argued that Alabama’s congressional plan was enacted with the intent to racially discriminate against African American voters in violation of the Fourteenth Amendment’s Equal Protection Clause.110 Further, the plaintiffs asserted that the congressional plan was enacted with the intent to dilute African American voting strength, violating Section 2 of the VRA.111

On January 24, 2022, the district court issued an opinion granting in part the plaintiffs’ request for a preliminary injunction.112 The court found that the plaintiffs were “substantially likely” to establish the existence of a Section 2 violation in Alabama’s congressional redistricting plan.113 The court determined that Black Alabamians were “sufficiently geographically compact to constitute a voting-age majority in a second congressional district.”114 Further, the district court found that voting in the challenged districts was intensely racially polarized,” and “under the totality of circumstances . . . Black voters ha[d] less opportunity than other Alabamians to elect candidates of their choice.”115 Consequently, the court ordered the state legislature to pass a remedial redistricting plan within fourteen days with either a second majority-Black congressional district or a second district in which Black Alabamians could elect the candidate of their choice.116 After an extensive hearing, resulting in a 227-page opinion, the district court had concluded that “the question of whether [Alabama’s congressional redistricting plan] likely violated § 2 was not ‘a close one.’”117 Accordingly, the district court decided not to stay the injunction with the general election approximately ten months away and a primary election more than two months away.118 It would not authorize an election under a discriminatory plan. The voters of Alabama deserved a fair and equal opportunity to cast meaningful ballots under a plan that did not violate the Voting Rights Act and the U.S. Constitution, as the Supreme Court ultimately found.119

Nonetheless, the Supreme Court granted a stay of the implementation of the redistricting plan.120 In doing so, it delayed democracy. Justice Kavanaugh, in his concurring opinion, rationalized the stay due to the principle laid out fifteen years earlier in Purcell v. Gonzalez:

That principle—known as the Purcell principle—reflects a bedrock tenet of election law: When an election is close at hand, the rules of the road must be clear and settled. Late judicial tinkering with election laws can lead to disruption and to unanticipated and unfair consequences for candidates, political parties, and voters, among others. It is one thing for a State on its own to toy with its election laws close to a State’s elections. But it is quite another thing for a federal court to swoop in and re-do a State’s election laws in the period close to an election.121

Kavanaugh’s pronouncement favored the powerful state legislature and harmed voters. Allowing candidates to exploit an unfair, undemocratic, and discriminatory redistricting plan to tighten their grip on power unfortunately outweighed providing voters an opportunity to cast a ballot in a fair districting system.

Indeed, the stay allowed the state of Alabama to conduct elections under the discriminatory plan despite the lower court’s decision that the people of Alabama were entitled to an additional majority-minority district. On remand, the lower court found that

[t]he Plaintiffs already suffered irreparable injury once in this ten-year census cycle, when they voted under the unlawful 2021 Plan in 2022. The Secretary has made no argument that if the Plaintiffs were again required to cast votes in 2024 under an unlawful districting plan, that injury would not be irreparable. Accordingly, we find that the Plaintiffs will suffer irreparable harm absent injunctive relief.122

The Court ultimately concluded that the districting plan likely discriminated against Black voters, but only after an election had occurred under the discriminatory plan.123

A similar pattern was at play in the Louisiana redistricting case of Robinson v. Ardoin.124 There, as in Milligan, the lower court ordered states to draw new congressional districts before the 2022 elections.125 In both cases, the Supreme Court granted stays, leaving the racially dilutive maps in place, and opted to review the merits, even though no party had asked the Court to do so.126 Milligan and Ardoin highlight how the Supreme Court deprioritizes democracy by disfavoring the most critical actors in democracy: voters.

Further, Milligan provides a sharp contrast to other cases, such as Trump v. Anderson, in which the Court acted with notable speed to preserve a candidate’s ability to participate electorally and seek office.127 Six months before primary balloting began, Colorado voters filed their case challenging Colorado’s decision to disqualify former President Trump from state ballots for having violated Section 3 of the Fourteenth Amendment128 with his actions on January 6, 2021.129 The Colorado Supreme Court rendered its decision in December 2023.130 The U.S. Supreme Court hastily heard arguments and provided a decision in less than three months.131 The Court ruled in favor of the candidate over the people, finding that only Congress, not individual states, can enforce Section 3 of the Fourteenth Amendment against federal officeholders and candidates who engage in insurrection or rebellion.132

Compare that exercise in speed with the Court’s response in Milligan, where voters whose voices were silenced by discriminatory maps would suffer the primary harm in question. The lower court issued its preliminary injunction in January 2022, when the midterm elections were still ten months away.133 That injunction would have required Alabama to redraw its maps within fourteen days.134 The Court stayed that order the following month—leaving the discriminatory maps in place—and forestalled a hearing on the merits until October.135 When the Court finally ruled on the merits, it ruled in favor of the Black voters who had challenged the map as discriminatory.136 But Alabama voters had already suffered irreparable harm, as they had no choice but to vote in the midterms under a discriminatory map.

The contrast in swiftness and urgency is striking. When in a position to protect voters—as it was in Milligan—the Court moved slowly even as it intervened in a manner that restricted equal access to voting rights. But in Trump v. Anderson, the Court acted with great urgency to preserve the candidate’s access to the ballot. While some might argue that Anderson also preserved voters’ rights by making sure that American voters who wanted to vote for their preferred candidate (Trump) could do so, the concern for the candidate stands in sharp contrast to the disregard of voters’ access to a fairly drawn districting plan under a similar time frame. Granted, removing a candidate from consideration inevitably limits voter choice, and some might consider this limitation antidemocratic.137 On the other hand, scholars point to the value of Section 3’s prophylactic qualities, such as “democracy preservation.”138 Rules regarding candidate fitness arguably “ensur[e] that officeholders are at least minimally qualified, barring candidates who are likely to undermine democracy by promoting authoritarianism, and excluding those who threaten basic civil liberties and other liberal values.”139 The Anderson decision has accordingly been criticized for potentially weakening democratic accountability and allowing individuals who have engaged in insurrection to evade consequences, which some see as undermining the principles of democracy and the rule of law.140

D. Concentrating Power and Privilege: Trump v. United States and Citizens United

Two other decisions, Trump v. United States141 and Citizens United v. FEC,142 merit additional consideration for their impact on democracy and how they further concentrate power and privilege in the hands of the already powerful and privileged. Both Trump and Citizens United further enhance the power and advantage of those already privileged in electoral democracy in more indirect ways.

In Trump v. United States, the Court greatly enhanced presidential power in antidemocratic ways by granting presidents broad protections from criminal prosecutions for “official acts.”143 In August 2023, a grand jury indicted former President Donald Trump for actions taken while serving as President and after losing the 2020 presidential election. The four election-related charges brought against Trump alleged that he “conspire[ed] . . . to overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud to obstruct the federal government function by which those results are collected, counted, and certified.”144 Trump and his co-conspirators allegedly sought to achieve this goal through a number of avenues.145

The majority issued a sweeping decision establishing broad post-presidential immunity:

[U]nder our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity.146

Justice Sotomayor warned in dissent that the “decision to grant former Presidents criminal immunity reshapes the institution of the Presidency” and that “[s]ettled understandings of the Constitution are of little use to the majority in this case, and so it ignores them.”147 Justice Jackson further implored, “[B]eing immune is not like having a defense under the law. Rather, it means that the law does not apply to the immunized person in the first place. Conferring immunity, therefore ‘create[s] a privileged class free from liability for wrongs inflicted or injuries threatened.’”148 In this case, the Court ignored the facts before it and sought to “protect imaginary future presidents from imaginary future prosecutions.”149

Just as Trump concentrated power in the hands of the most powerful elected official and threatened the delicate balance between the governing and the governed, Citizens United also dangerously concentrated power in the hands of the wealthy. There, the Court substantially eliminated meaningful restrictions on campaign contributions by corporations.150 As a result of the Court’s decision, corporations can spend unlimited funds on campaign advertising.151 This, in turn, has increased the ability of wealthy donors and corporations to influence electoral outcomes.152 The Supreme Court effectively opened the financial floodgates and created a massively unlevel playing field between individuals and corporations in the electoral context.

The concentration of electoral power can also indirectly augment the power of politicians and candidates who are closely tied to the wealthy. In so doing, it pulls us further from democracy toward oligarchy by privileging the interests of well-connected and well-funded politicians over the participatory rights of voters. Atiba Ellis thus refers to the “voting rights paradox,” which “expressed in its simplest form” is that “the democracy belongs to those with power, and not to all the people.”153

IV. democracy for the people

The Supreme Court has placed a heavy burden on those who should be the beneficiaries of a truly democratic system: the voters. While in the past the Court has sometimes served as a refuge for the people in civil and human rights, the Court has more recently allowed restrictions that serve as barriers to the ballot. The ability of the states to erect such barriers based on minimal evidence of actual fraud and a feigned interest in election integrity—juxtaposed with the heavy burden borne by voters enduring discriminatory redistricting and stifling requirements of restrictive proof-of-citizenship and voter-identification laws—systemically favors the powerful over the people.154 These restrictions—whether voter identification, absentee-ballot access, redistricting, or documentary proof of citizenship—represent a “crazy-quilt” of laws that vary from jurisdiction to jurisdiction.155 Additionally, feigning interest in election integrity has become synonymous with alleging voter fraud. The distorted focus on election integrity has led to legislation that strangles voters’ ability to access the ballot.156

An approach focused on voters would prioritize access rather than relying on hollow invocations of integrity. A Carter Center study found that “human rights law and democratic best practice say that governments should enable the participation of the broadest possible pool of eligible voters and make the casting of a ballot as simple as possible.”157 The United Nations High Commissioner for Human Rights has declared that “the onus is on States to demonstrate that any restrictions” on the right to vote “are not discriminatory in their purpose or effect.”158 Moreover, the United Nations Human Rights Committee “encourages governments to take proactive measures to strengthen the voting rights of women, minorities, and groups that have suffered past discrimination in exercising the right to vote.”159

The people can no longer trust that the courts will save democracy. We must look elsewhere, including to other branches of the federal government. Congress has attempted on several occasions to pass comprehensive voting-rights legislation. The John R. Lewis Voting Rights Advancement Act of 2021 (VRAA)160 seeks to address the Supreme Court’s dismantling of key parts of the VRA. To restore what was lost in the Shelby County161 decision, the Act proposes two types of preclearance. Geographic coverage would require certain states and local jurisdictions to submit voting changes for approval to either the Department of Justice or the federal district court in Washington, D.C.162 There would also be nationwide “practice-based” preclearance for certain changes to voting laws, such as adding at-large districts, requiring documentary proof of citizenship, and changing boundaries in majority-minority districts.163 Additionally, the Act would clarify the language in Brnovich and codify a list of factors for assessing voting-rights violations consistent with prior Supreme Court jurisprudence.164 The VRAA focuses on voters’ ability to access the right to vote as opposed to the legislature’s or candidate’s concerns; the draft language explicitly considers whether voters “fac[e] greater costs” in complying with a new voting rule in light of “social and historical conditions.”165

Another important reform effort, the Freedom to Vote Act,166 proposes measures that would make access to the ballot less burdensome and maintain the integrity of the system. The Act would set federal minimum standards on vote by mail and drop boxes and select successful measures nationwide, including automatic voter registration, same-day registration, and a uniform early voting period.167 The Freedom to Vote Act significantly addresses both prison gerrymandering and campaign finance.168 These persons would be counted in the census in their home districts rather than the districts where they are incarcerated, which tends to increase population numbers in certain districts. Likewise, the Act introduces several measures to increase transparency and reduce the influence of dark money in elections, which does not require entities to disclose their donors.169 It expands the prohibition on campaign spending by foreign nationals, requires additional disclosure of campaign-related fundraising and spending, and mandates disclaimers on political advertising. Additionally, it establishes an alternative campaign-funding system for certain federal offices, reducing reliance on large donations by allowing states to opt into a program that matches small-money donors’ contributions.170 The Act also improves trust in the electoral process by implementing federal protections for state and local election officials and safeguarding election records. Finally, it seeks to promote confidence in the electoral process by establishing federal protections for state and local election officials and election records.171

While legislation is needed, the road to enactment is filled with obstacles. The VRAA passed the House in 2021 and 2022 but was filibustered in the Senate.172 It has been reintroduced in subsequent Congresses but has not prevailed.173 The bills did not receive any support from Republicans, who argued that the bills constituted federal takeovers of elections.174 With clear partisan lines drawn, Democrats lacked the votes to get through the filibuster; “even President Biden . . . conceded that the outlook was grim.”175 Unfortunately, the filibuster, which is a tool that hearkens back to the nineteenth century, has been used often to block civil-rights and voting-rights legislation.176 The VRAA and the Freedom to Vote Act have been no exception. The Senate has been unwilling to eliminate the filibuster in legislative debate, even though it has reduced the number of votes needed to approve judicial appointments. Clearly,

[r]eforming the filibuster to allow key votes on legislation is critical to restoring an operational and responsive Senate that has been increasingly dysfunctional and paralyzed in its ability to carry out the people’s will. While the filibuster has had a long history of standing in the way of progress, today’s filibuster has gained such outsize power that progress is practically impossible.177

This creates quite a quandary. Congressional legislation must address the antidemocratic, anti-voter Supreme Court decisions and what was lost in Shelby County.178

Ultimately, Congress’s inability to govern is why the Supreme Court’s decisions have taken on outsize importance and inflicted outsize harm. Without a functioning Congress, we are teetering on the precipice of a dysfunctional democracy. Paradoxically, the failure of the Supreme Court to safeguard voting rights has also imperiled access to the very channels of democratic change that could help spur remedial legislation. However, the antidote to this type of dilemma is and always has been persistent, strategic, and focused movements from the people. Consider the Montgomery Bus Boycott. Alabama gained national attention in 1955 when Rosa Parks powerfully refused to surrender her seat to a white passenger, sparking the boycott led by Dr. Martin Luther King, Jr.179 The community was determined not to ride the segregated buses in Montgomery, and the people organized rides and walked for more than a year before the boycott broke the chains of segregation. Ten years later, the Selma-to-Montgomery marches and the horrific incident now known as “Bloody Sunday” drew national and international outrage as law enforcement officers brutally attacked peaceful protestors while they advocated for voting rights. 180 The shocking violence and determined efforts of activists in Alabama and others across the nation led to the passage of the Voting Rights Act of 1965. Similarly, removing modern barriers to the ballot will require a consistent and steady effort to obtain the prize of equality.

In a previous article, I advocated the adoption of a realistic approach to election law that considers the complex interplay of race and voting.181 Such an approach would involve acknowledging racial discrimination’s historical and ongoing impact and developing innovative legal and policy solutions to address these challenges. As part of these innovative solutions, I suggest an affirmative right to vote in the form of a constitutional amendment. We have more constitutional amendments addressing the right to vote than any other fundamental right.182 Yet the right remains tenuous due to state legislatures and Supreme Court decisions that do not view the right as absolute. Lani Guinier, an early advocate of a right-to-vote amendment, explained that the Constitution includes “negative proscriptions” that “are not an affirmative guarantee that we really want all citizens of the United States to participate in making the decisions that affect their lives.”183 After all, the Supreme Court in Bush v. Gore informed us that “[t]he individual citizen has no federal constitutional right to vote for electors for the President of the United States.”184 In a case predating the Voting Rights Act, State of Alabama v. United States, the dissent proclaimed:

The privilege to vote in any State is not given by the Federal Constitution, or by any of its amendments. It is not a privilege springing from citizenship of the United States. It may not be refused on account of race, color or previous condition of servitude, but it does not follow from mere citizenship of the United States. In other words, the privilege to vote in a State is within the jurisdiction of the State itself, to be exercised as the State may direct, and upon such terms as to it may seem proper, provided, of course, no discrimination is made between individuals in violation of the Federal Constitution.185

Without an explicit right to vote, states are free to grant and revoke the right on the basis of various conditions, such as previous criminal convictions, competency, lack of identification, or payment of a fee. Some scholars contend that a right-to-vote amendment would not add anything to our current voting protections, particularly given the antidiscrimination attributes of the present amendments.186 But this misses key potential advantages: an amendment would strengthen the legal framework to combat discriminatory voting laws, such as voter ID requirements and gerrymandering, providing a path to challenge these and other suppressive measures in court. Further, an affirmative right-to-vote amendment would reinforce democratic principles and political equality, ensuring that all citizens have an equal voice in the electoral process, which in turn would strengthen public confidence in the democratic system. The amendment could help address historical injustices and systemic barriers that have disenfranchised certain groups of voters, promoting a more inclusive and equitable electoral system.

Voting must be reaffirmed as a right of citizenship.187 The Second Amendment affirmatively provides the right to bear arms.188 Likewise, in a democratic society where the right to vote is central to its operation, the Constitution should explicitly and affirmatively guarantee this right.

As Richard Hasen suggests in his comprehensive article advocating for a pro-voter approach,189 efforts to make election law work for voters are grounded in democratic theory and international-human-rights norms, and are based on five fundamental freedoms:

(1) [A]ll eligible voters should have the ability to easily register and vote in fair, periodic elections; (2) each voter’s vote should carry equal weight; (3) free speech, a free press, and free expression assure voters reliable access to accurate information to enhance their capacity for reasoned voting; (4) the winners of fair elections should be recognized and able to take office peacefully; and (5) political power should be fairly distributed across groups in society, with particular protection for those groups who have faced historical discrimination in voting and representation.190

To achieve these objectives, we will need more than a shift in the Supreme Court’s jurisprudence. The Court is not going to save us. Accordingly, other branches of government—and, ultimately, the people—must lead the way to a democratic and voter-centered reality.

Conclusion

The Supreme Court’s profound and evolving influence on American democracy is reflected in its rulings on voting rights and campaign finance. The civil rights movement ushered in a new era for the Court, marked by increased democratization, inclusion, and the expansion of civil rights and liberties. The Warren Court spearheaded this transformation with rulings that reinforced an important principle: democracy thrives when all citizens have the opportunity to cast their ballots. While the Warren Court marked a high point in expansion of democratic norms, subsequent Courts have regressed from this ideal, and the Roberts Court has sharply shifted toward antidemocratic policies. Its decisions on voting and election-related issues have eroded American democracy, often diluted the power of the vote, and enhanced the influence of candidates and the powerful.

We are witnessing the Court sow seeds of democratic dysfunction. Because of Congress’s inability to pass meaningful legislation in the area of voting rights,191 the Court’s antidemocratic and anti-voter decisions continue to harm voters. Democracy requires that the people have the ability to voice their preferences and that the government be responsive to them. However, recent jurisprudence has weakened the democratic system and bred distrust. The balance of power in the federal constitutional system is misaligned: a weak Congress has failed to respond to the Supreme Court, and the Court’s ideological beliefs guide its preference for candidates and parties over voters.

Critical reevaluation of the Court’s recent jurisprudence and its impact on democracy can help preserve the foundational democratic principles of equality and representation. So, too, can legislative responses. While biases and partisanship are inherent challenges, thoughtful reforms can provide the balance that democracy demands and enhance the Court’s legitimacy. We deserve nothing less.

Gilda R. Daniels is a Professor at the University of Baltimore School of Law and the author of Uncounted: The Crisis of Voter Suppression in America. I am grateful to the Yale Law Journal Forum for their patience, editing, and engagement with this work. I would like to thank the University of Baltimore School of Law, UB Librarians Charles Pipins and David Matchen, and my research assistants, Lillian Behrens and Starmanda Duker.