Hasen: “Voting Wars” Finding Their Way Back to Supreme Court


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UC-Irvine’s Rick Hasen – he of Election Law Blog fame – has a really nice look over at Slate at the coming drama in the U.S. Supreme Court over the next round of what he calls the “Voting Wars” … check it out:

The fights in our states over how hard or easy it is to vote have been filling the courts and are headed toward the Supreme Court. The cases range from voter ID laws to early voting rules and beyond. Already there is a case from Ohio, with ones from Wisconsin, North Carolina, and Texas potentially on the way in a matter of days or weeks. The stakes are high, not only for the lazy 2014 midterm elections but also for the 2016 presidential election and for the protection of voting rights in the next decade.

The fact that the cases are making it to the Supreme Court at about the same time is no surprise. Over the past decade, in the period I have called “the voting wars,” we have seen both an increase in restrictive voting rights legislation passed by Republican legislatures, such as voter ID laws, and litigation from both Democrats and Republicans to manipulate the election system to their advantage. In 2008, the Supreme Court rejected a constitutional challenge to Indiana’s voter identification law, and in 2013, the Supreme Court in the Shelby County case struck down a key portion of the Voting Rights Act providing that states with a history of racial discrimination in voting get approval before making changes to their voting rules and procedures.

Freed by these rulings, Republican legislatures have imposed tougher voter ID laws, cutbacks in early voting, limitations on voter registration, and other rules that make it harder to cast a valid ballot, such as North Carolina’s rule saying that if a voter casts a ballot at the wrong precinct, it cannot be counted for any races, even those for which the voter is eligible to vote.

Voting rights advocates have sued to block all or parts of these laws. In Ohio, the United States Court of Appeals for the 6th Circuit just ruled that it violates both the Constitution’s Equal Protection Clause as well as Section 2 of the Voting Rights Act for Ohio to cut back from 35 to 28 days of early voting. The restrictions include eliminating the last Sunday before Election Day, which African-American churches used for “Souls to the Polls” voting drives. Ohio has filed an emergency petition to the Supreme Court, and the court may rule as soon as Monday. Update, Sept. 29, 2014: The Supreme Court voted 5–4 to allow Ohio to reduce the number of early voting days.

In Wisconsin, a federal court had put Wisconsin’s restrictive voter identification law on hold as constitutional and Voting Rights Act challenges worked their way through the courts. Surprisingly, a panel of judges from the United States Court of Appeals for the 7th Circuit lifted the stay and allowed Wisconsin to immediately implement the law—even though the trial court noted that up to 300,000 Wisconsin voters lacked the right form of ID and that the state had initially planned an eight month (not eight week) rollout of the new law. Just Friday, the entire 7th Circuit sitting en banc divided 5­–5 over hearing the case, and the next stop is probably the Supreme Court.

In North Carolina, a federal judge refused to block parts of North Carolina’s blockbuster anti-voting bill challenged under the Constitution and the Voting Rights Act. But the case was just heard by a 4th Circuit panel, and those judges seemed quite skeptical. One judge asked: “How come the state of North Carolina doesn’t want people to vote?” It would not be surprising to see the appeals judges put the law on hold, and for North Carolina to run to the Supreme Court.

Finally, trial just ended in a challenge to Texas’ tough voter ID law—this is the one that says a student ID is not acceptable but a concealed weapons permit is.  Observers expect the judge will rule at any time on whether the law violates the Constitution or the Voting Rights Act, and there’s no question that if the judge puts Texas’ voter ID law on hold, the state will appeal higher, with the case potentially ending up in the Supreme Court.

Although the issues in each of these four cases differ in their particulars, they all raise the same fundamental two questions: When is the Constitution violated by cutbacks in voting rules, and when does a burden on minority voters violate Section 2 of the Voting Rights Act by depriving these voters of the same opportunity as other voters to participate in the political process and to elect representatives of their choice?

At one extreme is the opinion of the 6th Circuit in the Ohio case, which found that even the minor burden of having just four weeks (instead of five) of early voting (plus no-excuse absentee balloting) violated both the Constitution and the Voting Rights Act. At the other extreme is the opinion of the federal court in North Carolina, which had no problem with risking the disenfranchising of voters even though the state did not prove its laws prevented any voter fraud.

The principle the Supreme Court should apply, although it may not apply, is that legislatures should not be able to put significant burdens on minority voters or any other voters without a decent reason for doing so—and a “good” reason for a voting rule is not to secure party advantage in the next election.

But it’s no good betting that the Supreme Court will read either the Constitution or the Voting Rights Act so expansively. Indeed, many of us were apoplectic when the Supreme Court in Shelby County struck down the preclearance provisions of the Voting Rights Act in 2013 precisely because we knew that these other tools for policing cutbacks in early voting were unlikely to be successful given how the courts had already interpreted the scope of these provisions. For the most part, it has been Democratic and more liberal judges who have issued opinions reading voting rights protection broadly, and it has been Republican and more conservative judges who have issued opinions reading the protections narrowly. There is every reason to expect the same pattern at the Supreme Court, with a 5–4 conservative-liberal split on these questions.

If the Supreme Court gives the green light to all the voting cutbacks, and especially if it does so reading the Constitution and the Voting Rights Act narrowly, then expect to see even more Republican legislatures pass voting cutbacks in time for the 2016 elections.

There is a chance that in the new and upcoming cases, the Supreme Court will decide to simply stay out of these controversies, as it did with an early voting dispute from Ohio back in 2012. Further, at least in the Wisconsin case, there is a strong reason for the court to put Wisconsin’s voter ID law on hold for 2014. The court wrote in a 2006 case that courts should not change election rules just before an election, which is exactly what the 7th Circuit just did: “Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.”

The Wisconsin decision could affect whether incumbent Republican Gov. Scott Walker gets another term. Right now the polls show him locked in a very tight race with Democrat Mary Burke, and in a very tight race the new voter ID law rolled out without enough time for fair implementation could make a difference.

But the longer-term prospects for court protection of voting rights appear bleak. We cannot expect the Supreme Court to read voting rights protections broadly, and we cannot expect a polarized Congress to pass any new voting rights protections to make up for the loss of preclearance. Instead, the battle over voting rights will have to be fought state by state, through political action and agitation.

We ignore what’s coming at our peril.

Buckle your seat belts, election geeks … it’s going to be a bumpy ride!

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