As I write this, the bitter clock in New York’s iconic landmarks is striking midnight on the idea that you can build a democracy in which government is a force for democracy. A Donald Trump presidency will, for the first time in centuries, create a deplorable majority in Washington. And for the first time since 1933, a coming Trump administration will assemble a punitive majority in the United States Supreme Court.
Of course, the Supreme Court can be seen as a moment in time, as metaphorical litmus tests and debate topics, for posterity. It is easy to imagine a ruling that reverses course on Roe v. Wade but upholds labor rights; ideological doubt also makes a great many of us in the know not to reach for those quotes.
That is all to say that at most times the court can serve as a moving object.
My guess, though, is that next week, in a plurality opinion by Justice Anthony Kennedy (as it seems almost impossible he would return to the drawing board as soon as a Trump appointee is confirmed), the court will strike down much of the new New York City law that gives lots of undocumented immigrants a simple, public right to vote — they will put money in the general treasury, along with cash from their employers, with which to get on the ballot.
The court is going to rule that the New York law violates “the due process clause” of the U.S. Constitution. Its only understandable justification, you can argue, is that the long road of lawmaking — tens of thousands of dollars in lawsuits, on top of fighting bills at the polls — has already held enough time to ensure that the right of American citizens to vote for their mayor and city council represents some kind of compelling social policy goal.
But I doubt it. Several justices have lately interpreted the constitution to say that states “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” It’s not hard to conceive of two other sorts of restrictions under the due process clause: one that is so vague, so one-sided, that it has the effect of making constitutional rule out of reach of any well-intentioned citizen. And it is not hard to imagine another: one where the rule is so clear, so obvious, that even a crazy person looking down from the heavens could see that voting isn’t a religious right.
A city which has made voting automatic will not be able to attract Republican voters. But it will not exactly be suffering a heart attack with the five Republican appointees on the court deciding this case. It’s true that New York’s illegal immigrant voting law is just now entering its peak impact and not yet in the hysterical gibberish that passes for argument about illegal immigrants voting. But New York would certainly be motivated to expand voting availability in the future if it knows that an increasingly cavalier ruling on this issue could hasten its partisan transformation into an ethnically polarized and authoritarian enclave.
The answer to New York’s crisis of democracy won’t be to ban anyone from voting, but to make the sort of routine, common-sense changes to election laws that have been made in virtually every other state — opening up primaries for all voters and bringing all elections to the people. You’re better off fleeing New York than laying up the immigration laws of, say, Pittsburgh.