A GW alum and University of Kentucky law professor discussed his book on the U.S. Supreme Court and its repeated history of “bad” rulings on voting rights issues at the GW Law Student Conference on Thursday.
Joshua Douglas, a professor at University of Kentucky’s Rosenberg College of Law, said his book “The Court v. The Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights” identifies the nine “worst” Supreme Court rulings on voting rights and analyzes how the top court has helped produce “a broken electoral system” by “undermining” citizens’ right to vote. GW Law’s Multiracial Democracy Project hosted the event, and the project’s director Spencer Overton moderated the conversation.
Douglas said his book makes the case that little-known Supreme Court cases like the 1992 Burdick v. Takushi case are just as important as landmark rulings like Bush v. Gore in 2000 and Citizens United v. FEC in 2010.
To prove his point, he asked the audience to raise their hands if they had heard of the latter two cases. Nearly every hand was in the air. But almost no one in the room raised their hand when Douglas asked if the audience had heard of Burdick v. Takushi, a 1992 ruling that determined there’s no constitutional right to a write-in vote.
While the Bush and Citizens United cases are explained in Douglas’ book, he said it is important for the public to know about cases like Burdick to understand why the court has issued recent rulings limiting voting rights.
“That’s the foundation for the way in which the court thinks about voting rights today,” Douglas said.
In Anderson v. Celebrezze (1982), the court tossed out Ohio’s early filing deadline for independent candidates, a ruling Douglas has previously said looked good on the surface but created new parameters that states have used to implement restrictive voting laws.
“The court planted some seeds in cases that kind of no one was paying attention to, and those seeds have now blossomed into deadly weeds on the under-protection of the right to vote,” Douglas said.
The court ruled in 1974 that states can bar convicted felons from voting, including those who have completed a prison sentence.
Douglas said though the rulings span five decades, the nine cases he analyzes in his book all gave “undue deference” to state legislatures. He said the court has displayed some limits to this approach, as it rejected former President Donald Trump’s bid to overturn the 2020 election and shot down a legal theory that would give state legislatures unchecked power on election rules.
“There’s some institutional legitimacy concern that the majority has,” Douglas said. “But in case after case, what you see and the thing that runs through all the cases is ‘We’re going to trust a politician. We’re not going to question them, and if you don’t like it, vote the bums out.’”
Douglas said he concluded his book by discussing what voting rights cases the Supreme Court may rule on in the future. He said the court may go after private right of action under the Voting Rights Act which means that, if overturned, civil rights groups like the NAACP couldn’t file a lawsuit against a potentially discriminatory voting law.
An appeals court ruled against private right of action for the VRA last year.
“I’m worried that other courts will follow what the Eighth Circuit said,” Douglas said. “Eventually, I think the Supreme Court’s going to have to take the issue, and I hope they say that’s crazy.”
