There is still suspense over what will happen on Election Day, with control of the Senate hanging in the balance. But regardless of who wins, we already know the 2014 election belongs to the U.S. Supreme Court.
This is the first election where the country will experience the full impact of the Court's recent decisions rewriting the ground rules of our democracy.
When the Court dismantled our laws regulating money in politics and gutted core voting rights protections, we knew those decisions would have consequences. But only now are we seeing the full scope of their impact: a return to pre-Watergate, pre-Civil Rights era practices. Cash from unknown sources is flooding the most important races, while state politicians have instituted new barriers to the ballot box for millions of Americans. Regardless of who wins, the integrity of our elections has been undermined.
For the first time in decades, citizens in nearly half the country will find it harder to vote. In 14 states, 2014 is the first major election with new voting restrictions in place. For many working class, minority, elderly, and young Americans, voting is now more difficult and expensive. For some, it is impossible. In Texas, for example, 608,000 registered voters do not have the photo ID now required to cast a ballot. A disproportionate number of them are black and Hispanic. Some have already been turned away at the polls.
While the voice of ordinary citizens grows fainter, the voice of the 0.2 percent of Americans who spend the vast majority of money in federal elections -- often anonymously -- is louder than ever. Outside campaign spending has shattered previous records, with new groups like super PACs and "dark money" groups that do not disclose their donors dwarfing the spending of ordinary citizens and sometimes even candidates themselves. In many key races it is impossible for us to know who is buying our elections.
These are not abstract problems. They could determine results -- even control of the Senate. In nine competitive races, more than $162 million has come from "dark money" groups. In North Carolina, where Senator Kay Hagan is being challenged by state house speaker Thom Tillis, citizens are for the first time voting under one of the harshest new election laws in the country -- a law Tillis helped craft. The impact could be significant. In the last midterms, 200,000 voterscast ballots during early voting days now cut. More than one-quarter of all African-Americans who voted in 2012 did so during those days.
At the same time, outside money, much from undisclosed sources, has swamped the Tar Heel State. The contest is on track to become the most expensive Senate race in history. While both candidates have received significant sums from dark money groups, Tillis stands out. As of October 1, such groups spent more than $12 million in his favor. This is more than all spending on behalf of both major candidates in the last North Carolina Senate race.
These trends can be directly traced to recent decisions by the five conservative Supreme Court Justices.
Exhibit A is Citizens United. That notorious 2010 decision approved unlimited corporate spending in elections. But its impact went further. It also unleashed a host of new entities to influence elections, including "candidate-specific dark money groups" that support particular candidates while shielding donors' identities. In McCutcheon v. FEC, decided earlier this year, the Court articulated its radical new vision of democracy: The use of large political contributions to obtain "ingratiation and access" to officeholders, the Court said, embodies "a central feature of democracy." Indeed, it is more central now than it has been in decades -- thanks, in no small part, to these decisions.
The Court's strained vision of democracy has shaped the voting landscape as well. Its 2007 decision upholding Indiana's strict voter ID law emboldened states to start cutting back on voting access. The doozie came last year in the Shelby County decision, which dismantled a core provision of the Voting Rights Act designed to stop discriminatory voting changes in certain states from taking effect. The Court reasoned that circumstances had changed such that those federal protections were no longer justified. But the real changed circumstance was the Court's decision. It not only has been interpreted as a green light for states to press harsher new voting laws, but also has eliminated a key tool to fight such laws. Immediately after the Court announced its decision, five states rushed forward with new restrictions that would have been blocked under the old law.
Texas's harsh new voter ID law is a prime example. Passed in 2011, that law was blocked in 2012 under the now-defunct portion of the Voting Rights Act because it discriminated against minorities. Even though this finding was never reversed -- indeed another court recently found the law was purposefully discriminatory -- the ID requirement is now in effect for 2014.
This is the democracy the Roberts Court has brought us -- one in which politicians feel free to deprive targeted constituencies of the vote and special interests feel free to buy up elections. But this new normal does not have to last. American history is full of examples of the Court changing course, especially in the face of negative public opinion. Given the clear damage to our democracy and sustained public outrage, we are hopeful this Court -- or at least the next one -- will eventually turn around.
But for now, while political partisans may have a tense and long election night, the Supreme Court's five-member majority will not. This year, anyway, they've already won.
Wendy Weiser is Director of the Democracy Program at the Brennan Center for Justice at NYU School of Law. Lawrence Norden is Deputy Director of the Democracy Program.