Mark Joseph Stern in Slate: Federal Judges Claim It’s Unconstitutional for States to Protect Voting Rights

The federal judiciary is on the brink of mandating voter suppression—even in states that don’t want it.

The Supreme Court consistently upholds states’ voter suppression schemes—stringent ID laws, extreme partisan gerrymandering, racist redistricting, limits on voting by mail—despite clear evidence of disenfranchisement. The court has rolled back long-standing federal protections for equal suffrage by dismantling the Voting Rights Act’s most important provision, spurring mass poll closures, voter purges, and cuts to early voting that disproportionately affect minority communities. SCOTUS did all this in the name of states’ rights, shielding states’ election laws from the overreaching arm of the federal government. These decisions rested on the principle that federal courts should defer to states’ judgments about how to run elections.

But there is now a growing movement within the federal judiciary that would turn this principle into a one-way ratchet. Conservative judges have begun to argue that federal courts must stand down when states suppress voting rights—and intervene when states try to expand them. These judges claim a constitutional obligation to overrule a state’s own determination that voting should be easy, safe, and reliable during a pandemic. And they seem to be advancing this theory now because they know they have a receptive audience in the U.S. Supreme Court.

Judicial review of judicial review. Small-time anti-democratic elite meets Big-time anti-democratic elite, or something.