Supreme Court has restricted voting rights in favor of politicians. Kentucky has expanded them.
Kentucky has been a national model for voting legislation in the past few years because it has adhered to what I call the “Grand Election Compromise.” It has expanded early voting, enhanced election integrity and enacted a reasonable voter ID law that has numerous failsafe mechanisms, all in a bipartisan fashion. It has also created a Kentucky Civic Seal for stronger civics education.
The result has been little significant litigation over voting rules (with the exception of the gerrymandering lawsuit) and praise for our election administration, including the award of the John F. Kennedy Profile in Courage Award to our Secretary of State, Michael Adams.
Other states have not been so fortunate and their elections are enmeshed in litigation. When those cases reach the U.S. Supreme Court, the justices have inevitably ruled in favor of state politicians and against voters. That’s why it is better to use the Kentucky model and create election rules that have legitimacy from both sides, thereby avoiding the Supreme Court altogether.
More: Kentucky's extreme politics excludes centrist voters
The Supreme Court has harmed the right to vote
As I recount in a new book, "The Court v. The Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights," the Court has harmed the constitutional right to vote—and therefore a robust democracy. Some of these cases, such as Citizens United (on campaign finance), Bush v. Gore (which essentially ended the 2000 presidential election), or Shelby County (which gutted the federal Voting Rights Act) may be familiar to many readers. Other cases are much more obscure. Some of the most concerning cases are from forty or fifty years ago, laying the foundation for today’s restrictive rulings. The Court has created a legal test that fails to scrutinize state election laws and trusts politicians, even though the politicians have every incentive to create rules that help to keep them in power.
That’s why the Grand Election Compromise should be part of every discussion of voting laws. The Grand Election Compromise entails four ideals that Democrats, Republicans, and everyone else should acknowledge and accept as a foundational starting point for our conversations:
Every eligible citizen should be allowed to vote with minimal burden.
The system should acknowledge concerns of fraud and set up ways to deter it.
Voters should be as educated as possible.
Elections should be won by ideas, not by the rules of the game or the partisanship of election officials. This also means that losers should readily accept their defeat.
None of these propositions are controversial—or at least, they shouldn’t be! They all derive from an understanding that democracy requires the consent of the governed, which is a fundamental principle enshrined in our Declaration of Independence. And in Kentucky, adherence to these goals helped to create strong election rules.
Supreme court upheld unfair gerrymandering in Kentucky
Contrast those rules with the recent approach to redistricting in Kentucky, in which the Republican-controlled legislature jammed through unfair maps with little public discussion. Predictably, there was heated litigation over the maps. And perhaps predictably, the Kentucky Supreme Court deferred to the legislators and upheld the maps. Though Republicans won the litigation this time around, they could be on the losing end in another cycle or two. That is not the way to achieve bipartisan legitimacy.
The Supreme Court has created a regime that unduly defers to politicians in the election rules they enact. While the Court should change its approach to better protect the constitutional right to vote, politicians should also not abuse this power. After all, our democracy belongs to all of us.
Joshua A. Douglas is a law professor at the University of Kentucky J. David Rosenberg College of Law. He is the author of the new book “The Court v. The Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights.” He is also the host of the Democracy Optimist podcast. Find him at www.joshuaadouglas.com.
Douglas will be at Carmichael’s on Frankfort Avenue in Louisville on Wednesday, May 15 at 7:00 pm for a book signing.
This article originally appeared on Louisville Courier Journal: The Supreme Court is not protecting voting rights.
