The courts have been, at best, imperfect guardians of voting rights. The U.S. Supreme Court’s MAGA majority rejected Donald Trump’s attempt to wreak havoc with mail-in voting and turned away a MAGA re-redistricting map in Missouri.
However, the MAGA majority allowed states to proceed with individual inquiries to the flawed SAVE immigration data base, which is likely to result in false flags of noncitizen voters. On this one, “Completely absent from the majority opinion is any analysis of potential harm to voters who might be incorrectly flagged as noncitizens and removed from state voting rolls,” Rick Hasen wrote. “That should have figured in the balance of the equities.” Fortunately, “this case is likely to have limited impact on the midterms, because … the NVRA prohibits mass purges of voters in the 90 days before the election … [meaning] states can still use the database now for individualized determinations.”
Above all else, the massive blow to the Voting Rights Act in the Callais decision, resulting in the evisceration of Black and Hispanic representation in the South (and elsewhere), hangs over the 2026 election and beyond.
Where does this leave us? Naturally, lawyers and voting-rights advocacy groups who devote themselves to defending voting rights in court continue to sketch out what amounts to a whack-a-mole strategy: Challenging illegal executive orders on their face and again as implemented; winning at the lower courts, then scrambling to defend wins from the predations of a SCOTUS MAGA majority that draws the line only when abject chaos (e.g., Missouri maps, Post Office redesign) threatens to turn an election upside down. Well, when you have a hammer (litigation), everything looks like a nail (a court case).
But this strategy is insufficient, if not misguided. Voting rights hang by a thread, and the future of free and fair elections remains tenuous as long as an overtly partisan, intellectually corrupt MAGA majority sits atop the Supreme Court, prone to use the shadow docket to greenlight Trump regime mischief; Circuit Court decisions depend on the composition of the panel drawn (do you, for example, get the infamous duo of D.C. Circuit Court judges auditioning for the MAGA Supreme Court, such as Neomi Rao and Greg Katsas?); and judge shopping remains endemic. Even with the best lower court judges, judicial remedies are often too little too late or simply not up to the task of disarming MAGA officials bent on suppressing voting rights.
Ultimately, the sanctity of voting rights — the core of our democracy — rests with the voters and the elected branches of government. Unless and until a broad pro-democracy coalition prioritizes voting rights and electing local, state, and federal officials who are committed to implementing the 14th and 15th Amendments as envisioned, preserving the principles underlying the Voting Rights Act, and holding accountable election deniers and suppressors, voting rights will remain fragile at best. Because Republicans have become an anti-democratic party hostile to an inclusive electorate, that means electing Democrats who are committed to an aggressive, pro-democracy agenda. (Let’s start with the basic principle that no one should hold federal, state, or local office in any branch if he or she cannot admit that Joe Biden won the 2020 election. For now, that means virtually no Republican who can make it through a primary is fit to hold office.)
What would a pro-voting rights agenda look like?
At the federal level, enduring voting protection would require a Democratic president and Congress determined to expand the Supreme Court and implement term limits; reauthorize and clarify the intent of the Voting Rights Act (testing the MAGA Supreme Court majority’s aversion to declaring it outright unconstitutional); and pass a federal statute and/or constitutional amendment enshrining the right to vote (not merely the right to be free of racial discrimination). As to the latter, the Brennan Center explains:
Today, no federal law provides for an explicit, affirmative right to vote. Congress has the power, under the Constitution’s Elections Clause and the 14th Amendment, to pass a law that does just that and then to provide citizens with the legal tools they need to enforce that right....
Congress should use its legislative authority to enact an explicit right to vote that is backed up with a clear mechanism for voters to challenge any infringement of that right. It should specify that any law or practice that makes voting more difficult will be subject to the strictest level of scrutiny by the courts.
In addition, Congress can pass and the president can sign legislation to end gerrymandering once and for all and to fully fund election machinery, including ample protection for state and local officials menaced by violence.
As important as federal officials may be, the real action often is in the states and localities. If we do not want states to abuse the SAVE database, then we must elect state officials who are not bent on conducting reckless witch hunts for noncitizen voters and mandating sloppy voter purges. If we want to prevent a repeat of 2020, then we must elect governors, attorneys general, secretaries of state, and state legislators who will not concoct phony elector schemes or otherwise work to undermine the voters’ will. If we really want democracy to prevail, then we will vote for governors and state lawmakers committed to the National Popular Vote Compact that awards electoral votes to the national popular vote winner. (It has already passed in 18 states plus the District of Columbia, meaning 222 of the 270 electoral votes needed to activate the law have already been accumulated.)
In sum, litigation has been a necessary defensive strategy to prevent any further erosion of voting rights, which is the cornerstone of our democracy. However, it is not a sufficient approach to fortifying our democracy. For that, we need voters and the elected branches of government at all levels to establish hard and fast rules to protect voting rights both in statute and in the Constitution itself.
The good news: Having seen the extent to which MAGA forces will go to suppress voting and cling to power at all costs, voters in the midterms may finally understand just how hostile to democracy today’s MAGA Republican Party has become. In response, they can elect local, state, and federal officials committed to protecting and expanding voting rights so that our right to choose our leaders does not hang on the luck of the draw on a federal Circuit Court panel or on the predilections of the MAGA Supreme Court majority, which has repeatedly shown itself hostile to protecting pluralistic democracy.
The upcoming election will not only decide the balance of power in Congress and the states but also the fate of electoral democracy. That should be all the incentive anyone needs to get out to vote.
While I don't object to expanding the Supreme Court, surely we should also impeach and try for treason justices who have sworn to uphold the Constitution who have instead systematically used their power to tear it apart!
So well said. Thank you.