Get to Know Your State Attorney General; Their Work Matters More than You Know

This is the first piece in an eight-month long blog series aimed at highlighting state attorneys general and their work. Upcoming blogs will feature writings from former and current state attorneys general and their staffs.

State attorneys general (state AGs) hold an indispensable position in the U.S. legal system. Considered the chief legal officers of the states, state AGs are pivotal in protecting the public interest and upholding the rule of law. These public servants work on many issues that impact your life every day, and in most states, they are directly elected. This November, state AGs will be on the ballot in 31 states and territories, making 2022 a critical year in determining how your rights and the rule of law are protected for at least the next four years. And yet, there is too often a lack of awareness by voters about what state attorneys general do, and minimal media attention on candidates running for this important office.

State attorneys general represent the state and state agencies on both the state and federal levels. Also referred to as “the people’s lawyer”, state attorneys general work to defend and uphold the U.S. and state constitutions. The role of the state AG varies across jurisdictions but commonly consists of enforcing federal and state laws, proposing legislation, operating victim compensation programs, issuing formal opinions to state agencies, and acting as public advocates in areas such as consumer protections, worker protections, and antitrust regulation.

In just the last few months, state attorneys general around the country have:

In recent years, certain state attorneys general have started to do more work around criminal justice reform, racial justice initiatives, and more work addressing systemic disenfranchisement. Earlier this year, the former Virginia attorney general rescinded 58 legal opinions that perpetuated racism, making it clear that those “legal opinions do not reflect the Virginia of today.”

Sometimes state attorneys general join forces to act on nationwide issues. We’ve seen state AGs form bipartisan coalitions to call on the FDA to regulate e-cigarettes and oral nicotine products, fight impersonation scams, and apply fair sentencing reforms to low-level drug offenses. However, state AGs do not always work together or agree on how to address an issue.

A state attorney general’s priorities and use of resources can differ enormously depending on who occupies the office. There are often stark differences between the work progressive state AGs and conservative state AGs do. For example, in Arizona, the state AG suggested that the state was under “invasion” by undocumented immigrants, in attempts to begin deporting them without federal immigration enforcement. In contrast, the Massachusetts AG endorsed the Work and Family Mobility Act, expanding rights to undocumented immigrants by allowing them to obtain state driver’s licenses.

State attorneys general play a key role in the U.S. legal system; the work they do impacts our everyday lives. And although they are directly elected in 43 states and territories, the races for state AG receive substantially less media and voter attention than the more traditional high-profile races for Congress and governorships. This needs to change. You can find information about your state AG and their work here.

ACS started the State Attorneys General Project in 2017 to recognize and highlight the distinct role of the state AG in the U.S. legal system. We believe that the role of the state AG should be used as a force to improve people’s lives. Throughout this year, ACS will feature writings from former and current state AGs and their staffs. Upcoming pieces will include the state AG’s role in promoting environmental justice and LGBTQ+ rights and will discuss state AG elections.

You can stay engaged and learn more about this work by visiting the State Attorneys General Project webpage, where news and information is updated weekly. The Project collects and publishes state attorney general news, blogs, Issue Briefs, and policy resources. We publish resources for law students and recent graduates interested in working in a state attorney general office. We also host programs engaging state AGs and examining some of the legal and policy issues they face. As the November elections approach, take time to learn about the AG in your state, share these resources within your networks, and stay on the lookout for upcoming blogs exploring the many ways state AGs make a difference in our lives.

Banning No-knock and Quick Knock Warrants is the Only Way to Prevent More Tragic Killings

Two years ago, on March 13, 2020, while executing a so-called “no-knock” search warrant in the middle of the night in Louisville, Kentucky, police fatally shot Breonna Taylor. Police opened fire into Taylor’s apartment after her boyfriend, Kenneth Walker, fired a warning shot at what he thought were intruders when police forced their way into the apartment. Her death occurred in a hail of thirty-two bullets fired by police, six of which struck her.

In the public outcry following Breonna Taylor’s death, activists and protestors demanded an end to no-knock and quick-knock search warrants. Yet, despite the tragic lesson her senseless death offers, few states have enacted the type of reform that would prevent this tragedy from playing out over and over again across our country. The case for banning these dangerous warrants will persist and grow stronger as more people are killed at the hands of police. How many lives will it take for states to finally act?

No-knock and quick-knock warrants are an exception to the longstanding common law “knock and announce rule,” which, as its name suggests, generally requires police executing a search warrant to knock at the entrance of the place to be searched, identify themselves as law enforcement, announce their intent to execute a search warrant, and wait a reasonable time for someone to let them into the residence. No-knock warrants eliminate all these requirements, while quick-knock warrants eliminate the requirement to wait a reasonable time before forcing entry.

It’s easy to imagine the events at Breonna Taylor’s apartment playing out very differently had the police adhered to the knock and announce rule. By their very nature, no-knock warrants create chaos and confusion, particularly when executed late at night or early in the morning when occupants are likely asleep. It is both disorienting and frightening to be abruptly awoken by screaming voices, flashing flights, drawn guns, and flashbangs. And yet, shaking off the fog of sleep and figuring out what all those screaming voices are commanding you to do can be a matter of life and death. Much like Taylor’s death, the killing of Amir Locke by Minneapolis police in the early morning of February 2 this year, provides yet another tragic example of the dangers of no-knock warrants.

The rise of no-knock and quick-knock warrants tracks very closely the rise in the so-called “War on Drugs” that begin during the Nixon administration in the early 1970s. Though few jurisdictions collect data regarding no-knock warrants, the use of paramilitary SWAT teams to execute no-knock and quick-know warrants can provide some idea of their explosive growth. By one estimate, SWAT deployments to execute warrants rose from about 1,500 a year in the early 1980s to between 60,000 to 70,000 a year in 2010. This exponential increase in such a dangerous tactic is particularly alarming when factoring in that  forty-two percent of those executed in this time frame were against black suspects and twelve percent were executed against Latinx suspects.

The increase in usage of these warrants closely tracks with the progression of the “War on Drugs” and largely occurred after a U.S. Supreme Court decision in a 1997 felony drug case that held that the knock and announce rule “can give way under circumstances presenting a threat of physical violence or where officers believe that evidence would be destroyed if advance notice were given.” It comes as no surprise that the search warrant for Taylor’s apartment was for “narcotics and/or proceeds from the sale of narcotics,” given the proliferation of no-knock warrants as part of the disastrous and yet ongoing “War on Drugs.

A little over a year after Taylor’s killing, in April 2021, Kentucky passed Breonna’s Law, which included reforms that generally prohibit no-knock warrants. While commendable, the reform has a few noticeable exceptions that risk undermining its actual impact. Namely, Kentucky still allows no-knock warrants for alleged crimes “that would qualify a person, if convicted, as a violent offender” or a terrorist, or in cases where “giving notice prior to entry will endanger the life or safety of any person or result in the loss or destruction of evidence.” We should be particularly wary of the exception for situations in which police might claim that adhering to the knock and announce rule would “endanger the life or safety of any person or result in the loss or destruction of evidence.” Given that threats to life or safety and the destruction of evidence are core justifications for the rise of no-knock warrants, we should be concerned that these exceptions could swallow the new rule.

The most effective way at preventing more tragic killings at the hands of police executing no-knock or quick warrants is to ban them, completely. Four  states—Florida, Oregon, Tennessee, and Virginia—currently have such bans in place. More states need to follow. Comprehensive reform also needs to include greater restrictions on knock and announce warrants. In the absence of meaningful reform, meaning bans that are not undermined by loopholes, people will continue to lose their lives as a result of quick and no-knock warrants, and it is almost a guarantee that the victims will be disproportionately people of color.

OSHA and Local Whistleblower Laws: How the Plaintiffs’ Bar Uses Creative Lawyering To Achieve Justice

During unprecedented times, the plaintiff’s bar utilizes creative lawyering to achieve justice for our clients. In doing so, we often rely on city and state laws to supplement and fill the gaps in legal protection left by their federal counterparts. COVID 19 made that increasingly true and, in the context of workplace safety, there are a number of statutes at play that have never been more critical, including the Occupational Safety and Health Administration (OSHA)’s anti-retaliation regulations and local whistleblower laws.

OSHA’s mandate is to ensure safe and healthful working conditions for employees by setting and enforcing standards and by providing training, outreach, education and assistance, including responding to whistleblower complaints. OSHA does this through its regulatory powers as a federal agency and state OSHA-affiliates adhering to the federal agency rules. The OSH Act itself, which created OSHA, presents a number of hurdles for workers’ rights advocates. For example, employees filing whistleblower retaliation claims under OSHA regulations have only 30 to 180 days (depending on the regulation) to file a claim. This is one of the shortest statute of limitations in the employment law arena.

In December 2020, OSHA celebrated its 50-year anniversary but, given the context of that time, it’s no wonder the celebration flew under the radar. Since the beginning of the pandemic, complaints of COVID exposure and workplace safety violations have exploded, with no region or industry immune to its impact. Unfortunately, this coincided with a continuous decrease in OSHA funding which in turn led to a declining number of inspectors and inspection rates. Between February 1st and October 26, 2020, an Inspector General Report found that the number of investigations conducted by OSHA fell 50% compared to the same time period in 2019 despite a 15% increase in safety complaints to the Agency. As a result, workers suffered and exposed not only themselves but their loved ones to this novel, deadly respiratory virus.

COVID 19 put a spotlight on the hurdles plaguing OSHA while simultaneously creating space for workers’ rights advocates to use city and state whistleblower laws to fill the catastrophic gaps in guarding workplace safety. And it seems that states are recognizing the importance of these protections – both California and New York have had recent developments in their whistleblower retaliation laws to support workers’ rights.

The California Supreme Court recently held in Lawson v. PPG Arch. Finishes, Inc., that an employee’s whistleblower retaliation claim could survive summary judgment if the employee can show that their complaint was a contributing factor in the employer’s decision to take an adverse employment action against them. Previously, employees had a higher standard, the burden shifting framework applied in the U.S. Supreme Court’s landmark decision in McDonnell Douglas Corp. v. Green. Now, this development requires that under California Labor Code Section 1102.6, the employer must show by clear and convincing evidence that it would have taken the same unlawful action against the worker for legitimate, independent reasons even if the person had not engaged in protected whistleblowing activity, a nearly identical framework to that used under the Sarbanes-Oxley Act of 2002.

In New York, the plaintiffs bar has been advocating to strengthen our state’s whistleblower law for decades. On October 28, 2021, New York Governor Hochul signed legislation expanding the scope of whistleblower protection under New York Labor Law 740. The previous iteration, which was enacted in 1984, limited anti-retaliation protections to employees who raised concerns about “substantial and specific danger to the public health and safety” or “health care fraud.” Workers’ rights advocates found the narrow scope lacked any real teeth, essentially rendering the law useless and leaving New York’s workers vulnerable and reliant on OSHA. The new whistleblower law protections create substantial liability and exposure for employers, including an expanded definition of employees (including current and form employees as well as independent contractors), an expanded definition of protected activity (incorporating a reasonable belief standard and eliminating requirements that employees first report violations to their employer) and expanded prohibited retaliatory action (including any action that “adversely impact a former employee’s current or future employment,” such as contacting immigration authorities or reporting the immigration status of employees or their family members), amongst other key provisions.

Over the course of 2021, the Biden Administration has made several attempts to support workplace safety, yet, local advancements, such as those in California and New York, remain an important tool in the plaintiff lawyers’ toolbox. In the first two days of his presidency, President Biden signed Executive Order on Protecting Worker Health and Safety that directs OSHA to increase enforcement of existing agency standards and investigate new protocols for handling COVID in the workplace. The administration also issued a mandate for health care workers and for private employers with 100 or more employees to be vaccinated against COVID-19 or pay for weekly testing, by February 9, 2022. The Supreme Court upheld the requirement for health care workers, (Biden v. Missouri, Case No. 21A240 (Jan. 13, 2022); Becerra v. Louisiana, Case No. 21A241 (Jan. 13, 2022)), but blocked the mandate with regard to private employers stating: “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly.” Nat'l Fed'n of Indep. Bus. v. Dep't of Labor, Case No. 21A244 (Jan. 13, 2022); see also Ohio v. Dep't of Labor, Case No. 21A247 (Jan. 13, 2022). While the administration’s progress is reason to be hopeful, as the SCOTUS ruling indicates, the plaintiffs’ bar must stay vigilant in finding creative ways to support employees – utilizing the local tools and legislation available to us must remain part of the path forward.

“Which people get to decide?”

A core principle of the American Constitution Society is that the government is to serve the people, but which people appears to be a subject of debate and controversy. Earlier this month, the U.S. Supreme Court’s recent decision in Merrill v. Milligan amplified the principle that it was inappropriate to make changes to election rules “when an election is pending,” despite the fact that the primary election would not occur for more than 3.5 months, and the general election would be almost 6 months after that. These days, an election is always pending. In 2016, we saw the then-Senate majority leader’s refusal to consider Supreme Court Justice nominees in the spring of an election year, on the grounds that we should “let the people decide” on a replacement after the death of Justice Scalia. In stark contrast of course, the mantra became “the people have decided” in 2020 when that same then-majority leader raced through nomination of Justice Ginsburg’s replacement in the weeks prior to a general election. Which people get to decide? Those who had overwhelming re-elected a President to a second term, or those who were about to throw out a President after one term?

At issue in the Merrill v. Milligan case was a redistricting map, that the District Court ruled violated the Constitution, because it did not provide for two so-called “majority-minority” districts in the state of Alabama, where Black people comprise over 25% of the population, but constituted a majority in only one of the seven districts. The District Court ordered the maps to be re-drawn prior to the primary elections and the Circuit Court agreed. The state sought a stay or injunctive relief to keep their map, and the U.S. Supreme Court granted the stay, thus permitting the state’s map to stand.

Redistricting, sometimes referred to as “gerrymandering” can be used for good and for evil, and some of it can ensure fair and representative districts, so I will refer to negative gerrymandering and positive gerrymandering. People often conflate race and ethnicity with political party. They apply generalizations and stereotypes because statistically speaking, there are larger percentages of people of color in the Democratic party than in the Republican party. As we all know, that does not mean that all people of color are Democrats, or that most white people are Republicans.

The short-term results of affirmative racial gerrymandering helped to make up for past racial discrimination in voting districts, and for the dilution of the voting strength of people of color in many jurisdictions. SCOTUS has explained that whether race is used for racial reasons or for political reasons, strict scrutiny applies and the state needs to have a compelling interest and narrow tailoring. But the long-term effect of using race to form districts, even though constitutionally permissible, means that there is backlash, and like the 14th Amendment, which was specifically adopted to provide equal protection of the laws to freed slaves, and the 15th Amendment, which prevented voting restrictions based on race, color or previous condition of servitude, was twisted to prevent remedial actions that sought to equalize opportunities by providing more to some people, and less to other people.

In order to avoid a claim, states have to show compactness, contiguity and that they are not dividing districts in odd ways. Using geometry and other mathematical principles is a way to check for extreme partisanship as a project in Boston has been doing, using the Markov chain Monte Carlo technique in a Pennsylvania redistricting case. The mathematicians note that the algorithms cannot make the tough choices for us but can “rein in the worst abuses and start to restore trust in the system.”

Putting aside for the moment the question of where--and for whom--one is able to vote, let’s take a moment to go back to “which people,” especially which people will actually vote. Substantial changes in voting registration and access laws across the nation are leading us to a crisis of democracy, all made possible by SCOTUS’ decision in Shelby County.

Voter ID laws are legally permissible according to SCOTUS, as long as they are related to voter qualifications, as there are interests in making sure only eligible voters vote, and vote only once. The legitimacy of government and integrity of the electoral system are important interests justifying some burdens on voters, as is the orderly administration and accurate count of votes. But stringent ID laws are not necessary to safeguard the electoral process, because rarely to do people try to vote if they are not eligible. Onerous voter ID laws violate the Voting Rights Act of 1965, even after Shelby County, if they have the effect of making it more difficult for racial and language minorities to vote.

Since Shelby County eradicated the pre-clearance requirement for any changes to voting policies and practices in covered jurisdictions, many states have enacted new substantive restrictions on voting and many of those involve identification laws. Not all of those states were covered by the pre-Shelby County pre-clearance requirement, but the boldness has expanded. What types of identification issues arise? Some places do not accept passports, some do not accept student IDs, but they (Texas) do accept gun licenses. Some do not accept the federal registration card that members of many Native American tribes are required to carry at all times. Some do not accept EBT food stamp cards.

Access to particular types of identification is an issue that cuts across race and poverty. Those born at home may not have a birth certificate. Applying for one requires an internet connection and some sort of identification to prove who you are (like witnesses/your parents). It costs money. It takes time to get there. And if you do not drive, are disabled, and there is no public transportation, or you have a pre-existing condition and fear COVID-19, then you are out of luck. Some people are not able to get a driver’s license because they only have a P.O. Box, such as unhoused people as well as many Native Americans living on reservations who do not have street addresses.

As long as there is an effective mechanism for checking who is eligible to vote, there is no reason for these increasingly burdensome restrictions on marginalized communities. The ancient Romans, who we credit for our democratic ideals, had no pre-registration. You showed up in the Forum and voted, orally, in the moment. Imagine having that type of engagement! (Now of course they had slaves to do the work, so the citizens could govern, but that’s a blog for another day.)

The Federal Responsibility to Promote Police Reform; And What Seating a Black Woman on the Supreme Court has to do with it.

This time of year—with Black History Month followed by Women’s History Month—turns our gaze toward scholars, advocates, and thinkers who fit one or both of those identities, asking their thoughts in this moment. As a Black woman and a Black mother, few topics grip me as more important than addressing the use of excessive police force in a long-term, impactful manner. The threat of police violence hovers as a constant, threatening cloud covering Black peoples’ everyday lives. “Living While Black,” forces us to navigate our days’ journeys while too often presumed punishable, permeating how we talk to and prepare our children to face the world. Headlines and social media splashed with hashtags of the most recent Black son or daughter unjustly killed by police force us to hold our collective breath awaiting verdicts and to suppress our anguish when we hear acquittals or sentencing pronouncements clearly showing that Black lives often do not matter in our justice system. As a sentencing scholar – approaching my work through my perspective as a Black woman – I have come to conclude that policing in America so often operates as punishment that we can only have meaningful systemic change when we couple federal legislative and executive actions with renewed constitutional protections of life, liberty and security. As there is movement by the legislative and executive branches on the federal level to implement police reform, having a Black woman’s perspective on the Supreme Court, and including her unique set of experiences and insights in deliberations, may just be the key to legitimate and workable protections from policing abuses and toward the just treatment of all people under the law.

Unfortunately, our legal system allows, and often even encourages, police behavior that leads to the death of people punished outside of any adjudication of their guilt – a phenomenon I term the death penalty on the streets. From federal programs sending surplus military equipment to state and local police agency SWAT teams to the federally-implemented War on Drugs policies that have led to decades of jurisprudence expanding police power over individuals and their private spaces – the federal government, having helped create an environment that fosters this assault on individual security, must shoulder a responsibility to curb it. Data in recent years reveal that SWAT teams are not typically used for hostage, barricade, or active shooter situations; instead, SWAT teams are deployed, as much as eighty percent of the time, to search someone’s home, often for low-level drug investigations. Unsurprisingly, Black people are more likely to be subject to military-like force during the execution of drug warrants. SWAT teams are more likely to be used in searches and raids targeting Black and Latino Americans than in those targeting white Americans. While SWAT teams and their use of no-knock warrants are but one aspect of excessive police violence that needs addressing, this aspect clearly highlights the need for federal action and constitutional protection. National headlines read that Amir Locke would be alive today were no-knock warrants banned. The same can be said for Breonna Taylor, who was denied justice. In both situations, the tactics taken by police officers were supported by the existence of federal police militarization programs and protected constitutional jurisprudence that focuses a reasonableness inquiry on the narrow moment that a police officer fires at an individual. Amir Locke’s killing came even after so-called reforms to the no-knock warrant policy. Local reforms will not be enough. In the same way that federal incentives and spending policies encouraged the rise in domestic police militarization, federal action must be used to incentivize reform. The George Floyd Justice in Policing Act, a promising reform, would make it easier for the federal government to prosecute police misconduct cases, eliminate qualified immunity for law enforcement officers, ban the use of chokeholds and no-knock warrants by federal officers and encourage states to do the same. President Biden’s promised executive orders address other much needed reforms governing police actions. But any federal action is limited in effect unless constitutional protections within which those reforms exist keep pace with the reality of lived experiences.

Ultimately, if policing is not viewed as punishment and therefore is not limited by the Eight Amendment protections against arbitrary and disproportionate punishment, then even with increased policing reforms, officers who kill may still be deemed to have acted reasonably even when that death could have been avoided. So long as an officer can plausibly claim a reasonable fear for his or her life, the Fourth Amendment jurisprudence upon which the courts now rely neglect the deeper issues of racial bias and ignore the bigger picture of what took place in the encounter just before the killing, including examining what the officer could have done to avoid even getting to that supposedly fretful moment when they decided to pull the trigger. Rather than focusing on human dignity and creating obstacles to the taking of life, as the Eighth Amendment directs, by applying the Fourth Amendment to police force cases, courts have failed to consider the lived experiences that demonstrate that when police officers kill, they inflict punishment that transcends a Fourth Amendment seizure. Black people have experienced policing as punishment for centuries. Black women have carried the sorrow of that punishment for ages. Our perspective brings a realness that has been missing from American jurisprudence in so many areas for far too long.

Police reform is a federal responsibility, and having a Black woman on the Supreme Court can help to protect the promise and longevity of that reform. A Black woman as the newest Supreme Court justice will, of course, be impactful beyond criminal justice issues. Black women have a unique vantage point from which to observe society. Black women have dealt with the challenges presented by being racialized as well as by being gendered. Such experience, perspective, and background allow Black women to connect with diverse matters involving justice, fairness, and equality affecting all members of society. While I cannot be certain that a Black woman will embrace my notion of policing as punishment, I am confident that having a Black woman serving on the Court will enrich deliberations among the justices in ways that will move the Court to discussions more reflective of the lived experiences of all Americans.

As we reflect upon Black History Month and Women’s History Month, it is important to acknowledge that, of course, Black women’s voices are always important and cannot be relegated to two months of the year. However, we do our history a disservice if we do not use these months to amplify the voices of Black women and to promote our perspectives and our impact on history and on our future. I am using my voice to highlight the need for a federal response to police violence. I am using my voice to speak up for the protection of Black lives because they matter. As a justice on our Nation’s highest court, a Black woman will use her voice to speak up for American justice for all, because justice matters.

Save Voting Rights, Reform the Supreme Court

In a 5-4 decision, the Supreme Court recently ruled that Alabama shall be allowed to hold elections this year using gerrymandered electoral maps that may yet be ruled illegal. Handed down by way of the shadow docket, meaning with minimal explanation, this decision is a further omen of this Court’s “burn it down” mentality towards the Voting Rights Act (VRA).

We are facing an existential threat as a democracy, as we watch our highest court take away one of our most fundamental rights in broad daylight. The question is, what are we going to do about it? Because rest assured, the Court will continue to obliterate the right to vote, particularly for people of color, unless and until it is stopped.

Federal legislation would definitely help, but it would also inevitably run into the same problem the VRA has experienced – namely the Supreme Court’s chopping block. To make lasting change in restoring a meaningful right to vote in this country, we must reform the Supreme Court.

In the absence of Court reform, any legislation enacted to repair voting rights is likely to face the same fate as the VRA. A reminder of how that fate has played out at the hands of our highest court:

In 1965, at the height of the Civil Rights Movement, Congress and President Johnson came together in an act of overwhelming bipartisanship to enact the VRA. The VRA would go on to become one of the most successful pieces of legislation in our country’s history in terms of expanding access to and ending racial discrimination at the ballot box.

That is, until the Supreme Court gutted the VRA in 2013 with its decision in Shelby County v. Holder and again last year in Brnovich v. DNC. With these two cases, the Supreme Court eliminated safeguards that had previously prevented states from engaging in blatant voter suppression, specifically voter suppression laws laser-focused on denying people of color access to the ballot box.

The Supreme Court’s war against voting rights in this country does not stop here. The Court, in its 2019 decision in Rucho v. Common Cause, also gave states permission to engage in partisan gerrymandering. Gerrymandering reduces voters’ ability to decide who represents them by almost guaranteeing which party will win certain races. It makes a mockery of our already deeply fraught democracy. Rucho is now being compounded by Merrill v. Mulligan, and the seeming likelihood that the Court is foreshadowing a similar tolerance for racial gerrymandering.

Let’s also not forget the Supreme Court’s decision in Citizens United v. FEC, which unleashed dark money into our elections. It is because of the Supreme Court that we now live in a “pay to play” reality, wherein many elections are influenced, if not decided, by millions of dollars in attack ads paid for by dark money groups with Orwellian sounding names.

Yes, we need federal legislation to repair the damage wrought by the Supreme Court. However, we need to be honest about the almost certain fate that awaits such legislation. Any federal legislation that succeeds in passing Congress and getting enacted will immediately be litigated and almost certainly end up before the same Supreme Court that created the problems the legislation is designed to fix. If we are to protect voting rights and election integrity in this country, we need to reform the Supreme Court. Or else, we are bound to repeat this same cycle of legislative whack-a-mole by the Court.

The Supreme Court has a legitimacy crisis of its own, as evident by the public’s declining approval of it. The Court is increasingly being viewed not as an objective, deliberative body driven by the law and facts, but as a partisan body controlled by politicians in robes. This is because the Supreme Court has been intentionally packed to make it hyperpartisan and to make its decisions politically predictable.

Senator Mitch McConnell manipulated Senate norms in 2016 to prevent President Obama from filling the Supreme Court seat left vacant when Justice Scalia died. Merrick Garland, a judge at the time, was nominated by President Obama for the Supreme Court and should have filled Scalia’s seat. Instead, McConnell refused to give Garland so much as a confirmation hearing, holding the seat vacant for over a year until then President Trump could nominate Neil Gorsuch to fill it. Fast forward until 2020, and President Trump and Senator McConnell again disregarded Senate norms to jam Amy Coney Barrett’s confirmation through while voters were casting their ballots for President Biden.

This packing of the Court for partisan gain is now proving outcome determinative, as cases are being decided by the votes of Justices Gorsuch and Barrett. This includes the decision in Brnovich, which upheld voter suppression laws in Arizona. That case would have almost certainly come out the other way, with Arizona’s laws being struck down, if President Obama and President Biden had been able to fill the seats now occupied by Gorsuch and Barrett. The same goes for the recent 5-4 decision in Merrill that, at least for now, blessed Alabama’s gerrymandered maps.

When this conservative supermajority keeps showing us what they are, at some point, we have to believe them. We are in a voting rights crisis in this country because of the U.S. Supreme Court. To safeguard the right to vote, we must reform the Court.