AP Photo/Bill Hudson

The Dangerous Legal Rule Behind The Supreme Court’s Latest Voter Suppression Decision

As a matter of precedent, the Supreme Court’s decision on Saturday to allow Texas’ Voter ID law to take effect is defensible. In 2006, a lower federal court halted Arizona’s voter ID law shortly before an election. The Supreme Court, in a case known as Purcell v. Gonzalez, reinstated the law. “Court orders affecting elections,” according to the justices, “can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.” Thus, courts should be reluctant to hand down decisions affecting a state’s election law as the election itself draws nigh.

At least on the surface, the Texas voter ID case looks fairly similar. A federal judge in Texas struck down the state’s law in the October before an election. Moreover, while Texas’ voter ID law is the “strictest regime in the country,” according to Justice Ruth Bader Ginsburg’s opinion dissenting from the Court’s decision to reinstate the law, it is, at the very least, a similar law to the one at issue in Purcell.

Nevertheless, there is a very important distinction between Purcell and the Texas voter ID case that Ginsburg also highlights in her dissent. Purcell was handed down nearly seven years before the Supreme Court gutted the Voting Rights Act in 2013. The Texas voter ID law, by contrast, went into effect despite the fact that it did not survive review under the fully operational Voting Rights Act prior to the Court’s 2013 decision. Saturday’s order reinstating the voter ID law, in other words, is an early sign of how much easier it will be for states to enact voter suppression laws under the Roberts Court’s narrow vision of voting rights.

The Purpose of Voter ID

Lest there be any doubt, voter ID laws are voter suppression laws. Though the laws’ supporters often claim they are needed to prevent in-person voter fraud, such fraud barely exists. From 2002 until 2011, Ginsburg explains in her dissent, “there were only two in-person voter fraud cases prosecuted to conviction in Texas.” A Wisconsin study examining the 2004 election found just seven cases of fraud out of 3 million votes cast, and none of these seven cases were the kind of in-person voter fraud that is prevented by a voter ID law. The evidence, in other words, suggests that Texas is likely to run its entire 2014 election without a single voter trying to impersonate another at the polls.

What voter ID laws do accomplish is that they disproportionately target groups like racial minorities, low-income voters and young voters who are particularly likely not to have a photo ID — and who also tend to prefer Democrats over Republicans on election day. As the trial judge who struck down the Texas law explained, approximately 600,000 voters are likely to be disenfranchised by the law.

The Usual Wisconsin Case

On the surface, Purcell‘s insight that courts should be reluctant to change a state’s election law as the election itself draws closer appears to be a neutral rule that favors neither voting rights nor voter suppression laws such as voter ID. Indeed, it is notable that just last week the Supreme Court suspended Wisconsin’s voter ID law in a decision that most likely relied on Purcell.

The Wisconsin case, however, was unusual in that a federal trial judge struck down the Wisconsin voter ID law in April, but, for various reasons, a federal appeals court did not get around to reinstating the law until mid-September. It was this decision to reinstate the law less than two months before an election that was rejected by the Supreme Court.

Typically, however, courts move much faster. In Texas, for example, a federal trial court handed down its judgment striking down the Texas voter ID law on October 11. The United States Court of Appeals for the Fifth Circuit stayed that decision on October 14, and the Supreme Court decided to leave that stay in place on Saturday the 18th. As the Texas case shows, Courts are capable of acting very quickly when one party seeks emergency relief from a lower court’s decision — and they often do.

One Free Election For Vote Suppressors

As Ginsburg alludes to in her dissent in the Texas case, however, the judiciary is unlikely to act quickly when it strikes down an illegal voter suppression law. The trial court in the Texas case set an expedited schedule to resolve that case in November of 2013. Yet it took nearly a year for the attorneys challenging the law to compile the evidence needed to convince the court to strike down the law, and for the court to fully consider that evidence. Though that evidence was compelling — it showed, among other things, that the lawmakers behind the law had an incentive to “‘gain partisan advantage by suppressing’ the ‘votes of African-Americans and Latinos,'” and that they rejected means to reduce the law’s impact on minorities without good reason — it could not have been compiled overnight.

Admittedly, the plaintiffs in the Texas case could have sought a quicker decision by requesting a “preliminary injunction,” an order that allows a court to halt a law prior to a full trial on the merits. The Roberts Court, however, has already shown that it is willing to uphold voter suppression laws based on very flimsy evidence. In Crawford v. Marion County Election Board, the Supreme Court upheld a voter ID law despite the fact that the lead opinion was only able to identify one case of in-person voter fraud in the proceeding 140 years! So there is a lot of danger in challenging a voter suppression law without first taking the time to compile a full record laden with evidence demonstrating why the law should be struck down. The Supreme Court has already shown that, if they can identify a fig leaf enabling them to uphold the law, they will.

The result is that, when a state enacts a voter suppression law, it may take a year or more for a trial court to determine that the law is illegal and must be struck down. By that point, the state may have already run an election under that law. And even if they haven’t, Purcell suggests that the court’s order halting the voter suppression law must be stayed if it is handed down too close to an election.

At the very least, vote suppressors will often get one free election when they enact a law making it harder to vote, where the law will go into effect regardless of whether or not it violates the Constitution or federal law. Texas will get to run the 2014 election under its voter ID law. Ohio will get to cut early voting days in 2014, despite the impact these cuts will have on low-income and minority voters. And North Carolina will get to run its 2014 election under what is likely the most comprehensive voter suppression law in the country. Some or all of these laws may eventually be struck down, but that won’t unelect the people elected because of them this November.

The Jim Crow Precedent

As I explain in my book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, anyone who cares about voting rights should be frightened by a regime that allows voter suppression laws to remain in place for even a single election, as vote suppressors have historically proven much more nimble than courts.

For much of the Jim Crow Era, the South was a one party region. General elections were largely formalities, and the Democratic Party’s candidate was all but guaranteed victory. So, in 1923, Texas tried to prevent African Americans from voting by enacting a law providing that “in no event shall a negro be eligible to participate in a Democratic party primary election held in the State of Texas.” When this law was struck down by the Supreme Court, Texas enacted a new law allowing the state Democratic party to establish rules that only permitted “white democrats” to vote in the primary. When that law was struck down, the state party passed a resolution, pursuant to no law whatsoever, providing that only “white citizens” may vote in a Democratic primary. This action by the state Democrats was ultimately upheld by the Supreme Court, although the justices reversed course nine years later.

The lesson is that, if you allow a voter suppression law to go into effect for just one election, then the supporters of that law are likely to come up with a new way to suppress the vote if the first law is ultimately struck down. And even if the second voter suppression law is ultimately struck down, this cycle can continue forever so long as each law is allowed to be in effect for just one election. This is why, when President Lyndon Johnson proposed the Voting Rights Act to a joint session of Congress, he warned that “[e]very device of which human ingenuity is capable” was used to deny African Americans the right to vote in the Jim Crow South. As I explain in Injustices,

Segregationists were nothing if not creative in their efforts to drive African Americans away from the polls. When the Supreme Court said Texas could not disenfranchise black voters directly, they tried to do so indirectly. When that failed, they let party delegates do it for them. And when this tactic failed nearly ten years later, white racists could fall back on poll taxes, or literacy tests, or any of a myriad of other devices intended to keep black voters from the polls. . . .

Voter registrars in the South often wielded absolute authority over who could or could not register to vote. As President Johnson told the nation after Selma, “[t]he Negro citizen may go to register only to be told that the day is wrong, or the hour is late, or the official in charge is absent.” And should they succeed in speaking to a registrar, a black voter “may be disqualified because he did not spell out his middle name or because he abbreviated a word on the application.”

The key to preventing this extraordinary creativity from standing in the way of the franchise was to stop voter suppression laws before the next election took place. That was the genius of Section Five of the Voting Rights Act, which required states and localities with a history of racial voter suppression to “preclear” any new voting rules with federal officials before those rules could take effect. And, yet, the Roberts Court neutered Section Five in its 2013 decision in Shelby County v. Holder. Vote suppressors in Texas may once again turn “every device of which human ingenuity is capable” to the task of voter suppression.

A Better Rule

Shelby County was rooted in the conservative justices’ belief that “things have changed dramatically” in states with a long history of racism, and thus a law like the fully operational Voting Rights Act was no longer necessary. Justice Ginsburg, for her part, warned in dissent that nixing a key prong of the Voting Rights Act “when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” It is now clear that Ginsburg was correct, as voter suppression laws in Texas, Alabama, North Carolina and elsewhere demonstrate.

Purcell also rests on a dubious premise. Recall Purcell‘s warning that “[c]ourt orders affecting elections can themselves result in voter confusion and consequent incentive to remain away from the polls.” This is certainly true when courts issue an order making it harder to vote, such as when the Supreme Court reinstated two provisions of North Carolina’s voter suppression law or when a federal appeals court reinstated Wisconsin’s voter ID law. But voter confusion is much less likely to result when a court issues a decision halting a voter suppression law. If a confused voter brings an ID to the polls that they do not need to have, they will still get to cast a ballot. But if the same voter mistakenly forgets their ID (or fails to obtain one) because they were confused and believed that their state’s voter ID law was not in effect, then they will be disenfranchised.

A better rule would recognize that there is a difference between court decisions making it harder to vote and court decisions preventing voter suppression, and that there is rarely a good reason to allow an illegal voter suppression to remain in effect. Though there may be extraordinary cases where the logistical challenge of requiring a state to dismantle its election regime on the eve of an election would be insurmountable, the Texas voter ID case was not that case. As Justice Ginsburg explained, “there is little risk that the District Court’s injunction will in fact disrupt Texas’ electoral processes. Texas need only reinstate the voter identification procedures it employed for ten years (from 2003 to 2013) and in five federal general elections.”

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