Has the Supreme Court Undermined Voting Rights? David Daley Explains

BIANNA GOLODRYGA, ANCHOR: And now, we turn to democracy in the United States, which our next guest believes is under threat. In his new book, David Daley suggests that far-right actors, including within the Supreme Court, are controlling American elections. He describes a 50-year plot to undermine voting rights. And he joins Hari Sreenivasan to discuss the implications as Americans head to the polls in November.

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HARI SREENIVASAN, CORRESPONDENT: Bianna, thanks, David Daley, thanks so much for joining us. Your most recent book, “Antidemocratic: Inside the Far-Right’s 50-Year Plot to Control American Elections.” I’ve got to ask, look, when somebody reads 50-year plot, they’re going to be like, OK, this is a tinfoil material, you know, tinfoil hat material here. This is conspiracy theory. What makes this not a conspiracy in your mind?

DAVID DALEY, AUTHOR, “ANTIDEMOCRATIC”: This has been a very strategic effort at the heart of the Republican Party over the last 50 years. They’ve understood, I think more effectively than the Democrats have, that there are pressure points within our democracy. And that if you can put your finger on them, if you can control these little levers that sort of fly under the radar, whether we’re talking about gerrymandered state legislatures or whether we’re talking in many — about the constitution of the U.S. Supreme Court, that you are able to have outsized influence and to win victories that you never could have won otherwise. In many ways, Chief Justice John Roberts is the most effective Republican politician of his generation, because by controlling the Supreme Court as Republicans have, they’ve been able, over the last 20 years, to win victories, on guns on voting rights, on the environment, on the regulatory state that would simply not have been possible through the electoral process of outlooks (ph).

SREENIVASAN: What makes him a politician? He and lots of our — other members of our audience would say, hold on, he’s not elected. He’s not — you know, he’s a presidential appointee. I mean, you go back into his history as a young lawyer at the Reagan DOJ.

DALEY: That’s right. I mean, John Roberts, in many ways, his life’s work has been curtailing the Voting Rights Act. John Roberts grew up in an extraordinarily white town in Indiana. This was a town that even after America banned discrimination and housing laws was still advertising itself in vacation brochures as a home where only Caucasian gentiles lived. He clerks on the U.S. Supreme Court for Bill Rehnquist, who — it has been well documented in his days in Arizona was personally harassing and intimidating voters back in the 1960s. And Roberts, in his first job at the Department of Justice, it is really his job to try and derail the bipartisan reauthorization of the Voting Rights Act with significant changes that would have enhanced it and made it better. Roberts, in his memos, writes over and over again that it should not be too easy to prove a Voting Rights Act violation. His side lost that fight back in 1982, but Roberts would have the last word on this. I think the lesson of what happened in 1982 in that first defeat for John Roberts was that you could never derail something as American as the Voting Rights Act, something as American as motherhood and an apple pie and jazz through the electoral process, but it would be a whole lot easier to do this, you would not need 218 in the House, 51 in the Senate, you need a smaller number of five on the U.S. Supreme Court, and he would become 1 of them. 23 years later.

SREENIVASAN: OK. So, fast forward, one of his first cases at the Department of Justice under Ronald Reagan is about the Voting Rights Act. And then, in 2013, he is writing the opinion for a really important decision, Shelby County versus Holder. And for people who might not have been paying attention, there’s a concept in there called preclearance. What was it? Why is it so important?

DALEY: Preclearance is so important because it was the muscle, it was the teeth, it was the enforcement mechanism within the Voting Rights Act. Prior to the Voting Rights Act of 1965 there had been many efforts to try and bring equality and to put an end to a racial voting depression across the south and in other parts of the country. None of them really worked. It took too long to catch these that these efforts and all this skullduggery. And so, when Congress passed the Voting Rights Act in 1965, and when it reauthorized it again in 1982 in 2006, it insisted on preclearance that told these localities and states that had the worst history, you’re not going to be able to get away with this anymore. You’re going to have to run any change you want to make pass the Department of Justice or a court in Washington, D.C. first. And this effectively put an end to much of those efforts, because states were not allowed to do things without pre-approval.

SREENIVASAN: Tell me why is it so important to understand this attack that you say is an attack on the Voting Rights Act, you know, it’s been a long plan? Why is that crucial to understanding not just the power of the attacker but the consequences to be attacked?

DALEY: In this decision, John Roberts says that things have changed in the south and that the protections of the Voting Rights Act were no longer necessary, that we lived in a different country. It was not 1965 anymore. The trouble with that is that the attack on the vote began that very morning, that states across the south and elsewhere were waiting for this decision and immediately began implementing things like voter ID pushes and voter roll purges and precinct closures that they could not have gotten away with prior to the court’s decision. So, when Robert says that things have changed in the south, all he had to do was open his eyes to what was happening before the court’s decision. And immediately afterwards, very little had actually changed in the south, except now, thanks to the court, these dark forces that the decision and Shelby County unleashed we’re able to get away with it again.

SREENIVASAN: So, give me an example. The first federal election after that decision would have been Hillary Clinton versus Donald Trump. Was there an impact of the Shelby decision on that election?

DALEY: Yes. I think that absolutely. We can see the impact of Shelby County across American elections. We can see it in the 2024 election right now. So, much of the election chicanery underway in the State of Georgia right now in which a state election board is attempting to change laws around how elections are certified and credentialed would not have been possible under Shelby County. It would have had to have been precleared first. So, many state legislatures across the south that are enacting these new laws, those maps would have had to have been precleared to ensure that they were not racial gerrymanders. So, in states like Texas and states like Georgia, where the population growth has been almost entirely driven by black Americans and Latinos, and yet, their representation has not gone up. In fact, in many cases, it has gone backwards, that would not have been possible. The court’s decision in the Dobbs case that effectively put an end to abortion in many parts of the country. In this case, the justice who wrote the decision, Samuel Alito, ensured Americans that the court was not taking away a right, it was simply returning a contentious issue to the people in the electoral process, except the court knew full well that they were returning this issue to gerrymandered, oftentimes racially gerrymandered state legislatures that they had allowed to be rigged in advance and the outcomes were entirely predictable and the outcomes were opposed,oftentimes diametrically opposed to the wishes of the people of the states. And yet, voters had little recourse at the ballot box, thanks to the decisions that the court had made over the course of the previous decade. It’s as if they planned it that way.

SREENIVASAN: Well, if Shelby County’s decision, Shelby County versus Holder, that decision had an impact on the next federal election, I think a lot of people are also wondering, what does the recent Supreme Court decision on presidential immunity do to the elections that we have coming up?

DALEY: It’s a great question and a really important one. What the court did in that decision was effectively give President Trump immunity for the actions that were taken on January 6th and that Americans deserved to have some sense of completion there before this next presidential election, there were trials underway that would have gotten at the heart of a question as to whether or not president acting in ways that helped block the peaceful transfer of power would be held accountable for that. And this court ensured that that verdict would not come until after this presidential election, which I think is very dangerous. What this does is when you add this case to the larger picture of what this court has done on questions of democracy, campaign finance, and voting rights over the last 15 years, the Roberts court continuously puts its thumb on the scale to the advantage of the Republican politicians who placed them there. Now, the court looks at the kinds of reforms that many have offered and they say that, well, those reforms would threaten the court’s judicial independence, which to, I think, many of us feels a little bit rich that the court has brought on this crisis of credibility itself through decision after decision that harm voters and advantage their own ideological side.

SREENIVASAN: I can hear conservators right now saying, what are you talking about? The Roberts court is the one that upheld Obamacare, it made, you know, same sex marriages, the law of the land. You know, you can kind of go through the list of other ideas and look, they upheld Section 2 of the Voting Rights Act. I mean, is John Roberts really this kind of sinister character that you paint him out to be?

DALEY: Yes. When you look at the America that we lived in in 2005, when you look at the America of 2024, our constitutional rights have been dramatically changed and there’s been a dramatic shift in constitutional law over the period of that time. A Roe versus Wade simply no longer exists. Question of guns, conservative pickles and the NRA’s agenda has really been allowed to run roughshod over any effort by states and localities to control the safety of their own citizens. When you look at the court’s decisions on the regulatory state, what we have seen is a court that has placed itself again and again above the checks and balances of our system, which is supposed to have three coat equal branches. The — this court has placed itself above the other branches and the American people see and recognize this. The court’s approval ratings are at all-time lows, huge majorities of Americans back the idea of ethics codes and term limits, oftentimes above 70 percent of Americans. So, I think that the court would like us to think that they are simply neutral arbiters of the law, but we don’t have to close our eyes to what we see. This is a court that is unelected that, makes its decisions in private that is bound by no ethics code, that has lifetime appointments, and it has behaved in ways that has turned itself into a super legislature in many ways. And Abraham Lincoln in his first inaugural talked about how if the decisions of the entire people are to be fixed by the Supreme Court, the people have ceased to be their own rulers. I think we’re dangerously close to experiencing that moment.

SREENIVASAN: President Biden recently called for a binding ethics code and even term limits for the Supreme Court. And I’m wondering, are those proposals enough? What would you say is necessary to reform the court?

DALEY: I think that the packages that have been proposed so far are a good start. That they have the backing of the American people. Sometimes people like to say, oh, this is too difficult, that the road here is too long. I think that’s nonsense because I think the American people back these kinds of reforms that they already see this court acting as a political branch of government, and they would like to see it reigned in. The idea of term limits, of giving every justice 18 years, the idea of giving every president two selections onto the court, the idea of a binding ethics code that would tell us who is buying these justices, the Houses that belong to members of their family, who is sending them on vacations? Who is sending them on super yachts? Who is responsible for their lavish lifestyles? And do they have interests before the court? Those seem to me to be entirely fair questions. But I do think we also are going to have to get to the point of talking about a larger court, about expanding the numbers, and about shrinking its jurisdiction and the number of and the areas in which it is able to rule. When you have an unelected court that is repudiating the elected branches, the elected branches has the responsibility to reign it in, and to not do so would be allowing the court to put itself above all the other branches.

SREENIVASAN: If President Trump wins another term, what do you see as the future of the Supreme Court?

DALEY: Well, I think that President Trump already, in his first term, was able to put three justices on the court, and we’ve seen the direction in which that has gone. The Democrats have a number of justices on the court who are probably approaching retirement age, whose health is known to not be in the best shape. It is entirely possible that the President Trump, in another term, would have the ability to add another justice on to the court. It’s possible that, you know, several members of the current conservative super majority could retire and that Trump would be able to replace them with younger, more extreme versions of themselves. Right now, the current conservative super majority is probably locked in place as far as the 2050s, some political scientists say, which is well, past our lifetimes, perhaps, and deep into our children’s lifetime. A second term by President Trump would probably push that date even further into the future. His most recent book is called “Antidemocratic.” David Daley, thanks so much for joining us.

DALEY: A pleasure. Thank you for having me.