The last month has been a terrible month for voting rights, but it could only be the beginning. Though the Supreme Court handed down four voting rights decisions in the past several weeks, three of which allowed voter suppression laws to take effect, all four of these were only preliminary decisions. It is likely that the justices will consider one or more of these laws again before they leave for their summer vacations at the end of June. And, if the Roberts Court’s previous record on voting rights is any indication, it is unlikely that a right that an earlier Supreme Court once described as “preservative of all rights” will fare very well the next time it comes before these justices.
The Court was confronted by an attempt to make it harder to vote almost as soon as the justices returned from their last round of summer vacation. A week before the Supreme Court officially gaveled in its new term, the justices handed down a 5-4 decision allowing Ohio to cut it’s early voting days. Just over a week later, they allowed two provisions of North Carolina’s comprehensive voter suppression law to take effect during the 2014 election. And then, last Saturday, the justices permitted Texas’s voter ID law to take effect despite a lower court’s finding that the law “was racially motivated.”
Additionally, the justices halted Wisconsin’s voter ID law, disagreeing with a conservative federal appeals court that put the law back in place less than two months before the upcoming election. That decision, however, was most likely rooted in a prior opinion warning that “[c]ourt orders affecting elections can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.” Indeed, the thrust the Court’s most recent voting rights cases appears to be that judges should be hesitant to alter a state’s election law as the election itself draws nigh.
Because these were preliminary decisions, however, where the Court offered little explanation for their decisions beyond what could be gleaned from dissenting opinions, the issues presented by these cases — whether states can create barriers to the franchise based on false fears of voter fraud, whether they can enact a comprehensive law laden with provisions making it harder to vote, whether the Voting Rights Act has much life left in it at all after the Court gutted a key provision in 2013 — are likely to be before the justices again soon. There was a lot of drama in the Supreme Court during the past several weeks, but there was very little in the way of doctrinal developments. Those developments will come in the likely event that the justices reconsider the issues presented by these cases on the merits.
Voter ID laws, which require voters to show photo ID before they can cast a ballot at the polls, present the question of whether a voter suppression law is permitted so long as the state that enacted it can offer a fig leaf of a rationale explaining why the law accomplishes some purpose other than making it harder to vote. In the case of voter ID, that rationale is the need to prevent voter fraud at the polls — an evil that barely exists. Between 2002 and 2011, for example, “there were only two in-person voter fraud cases prosecuted to conviction in Texas.” In Iowa, the state’s chief elections official spent nearly two years searching for an example of in person voter fraud and was unable to find one.
Meanwhile, voter ID laws could disenfranchise approximately 600,000 voters in Texas alone, and they disproportionately target minorities, low-income voters and young people — all of which are groups that tend to prefer Democrats to Republicans.
In 2008, the Supreme Court cut off one avenue for challenging voter ID in a case called Crawford v. Marion County — a facial challenge claiming that voter ID violates the fundamental right to vote under the Fourteenth Amendment. Yet there are several other legal problems with voter ID. Though the Supreme Court struck down one provision of the Voting Rights Act, a remaining provision still forbids voting practices that discriminate on the basis of race. Additionally, to the extent that voters have to spend money in order to obtain a voter ID, that constitutes an unconstitutional poll tax.
Voting rights advocates have good reason to be worried that the Roberts Court will reject these new theories challenging voter ID just as they allowed a voter ID law to go into effect in Crawford. Notably, Crawford refused to halt Indiana’s voter ID law even though the lead opinion was only able to cite one example of in-person voting fraud within the previous 140 years.
The case for protecting early voting is less strong than the case against voter ID. Voter ID appears to serve no purpose other than voter suppression, since the main justification for voter ID laws is that they are needed to solve an imaginary problem. Many states, however, continue to conduct elections without early voting in place, and they have done so for years. It’s difficult to argue that the initial decision not to allow early voting, to the extent that the question was even considered when the state’s election procedures were set, was made in order to engage in voter suppression.
But what happens when a state cuts back on early voting days in what may be an attempt to make it harder for certain populations to cast their ballot? The Voting Rights Act provides that “[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” Moreover, as Judge Peter Economus explained in a decision suspending the Ohio cuts to its early voting days that were later reinstated by the Supreme Court, “a greater proportion of blacks not only cast [early] ballots than whites but do so on early voting days that” were eliminated by the new voting schedule. Additionally, some states have made early voting cuts that seem designed to diminish minority voting. After Florida’s early voting cuts helped produce six hour voting lines in 2012, one GOP consultant admitted that voting was eliminated on the Sunday prior to Election Day because “that’s a big day when the black churches organize themselves.”
(Additionally, low-income voters are particularly likely to use early voting. As a federal court noted in 2012, “early voters have disproportionately lower incomes and less education than election day voters.” Thus they are likely to have less flexibility to show up to the polls on a particular day.)
Though the argument that cuts to early voting violate the Voting Rights Act has convinced some federal judges, this is probably the weakest voting rights argument that reached the Court in recent weeks — at least as compared to the arguments against voter ID and other voter suppression laws that are much stronger.
Intent to Discriminate
In 2013, North Carolina Gov. Pat McCrory (R) signed into law a bill that is widely viewed as the most aggressive voter suppression law in the county. It includes a strict voter ID law, cuts to early voting, restrictions on voter registration drives, and it eliminates same day registration plus another provision that generally permit ballots to be counted if the voter shows up at the wrong precinct. A federal appeals court suspended the last two provisions of this law, with one judge demanding at oral arguments during the case “[w]hy does the state of North Carolina not want people to vote?” The Supreme Court, however, eventually reinstated these two provisions.
There are strong arguments against several individual provisions of this law, but its comprehensive nature raises another question — at what point does a state’s attempt to make it harder to vote become so multifaceted and aggressive that the law cannot be explained as anything other than a voter suppression law?
A more important question, however, is whether the law was not only passed with the intention to suppress the vote, but with the specific intention to keep people of color from voting. The Justice Department alleges that the North Carolina law was, indeed, passed with such racial intent. If the courts ultimately agree — just like the federal judge hearing the Texas case agreed that that state’s voter ID law was enacted with a racial motivation — that could have lasting effects for voting rights in both states.
Prior to the Supreme Court’s decision in 2013 neutering much of the Voting Rights Act, several states and localities with a history of racial voter discrimination — including all of Texas and much of North Carolina — were required to “preclear” their voting laws with officials in Washington before those laws could take effect. The Court’s decision effectively eliminated this requirement, but another provision of the Voting Rights Act can restore it if a court finds that “violations of the fourteenth or fifteenth amendment justifying equitable relief have occurred within the territory of such State or political subdivision.” Generally speaking, however, to show a violation of the Fourteenth or Fifteenth Amendment involving race discrimination a plaintiff must show that the discrimination was intentional.
So if the Texas judge’s finding that Texas was motivated by race discrimination when it enacted its voter ID law stands, or if North Carolina’s law is struck down on the basis that it was an act of intentionally race discrimination, then those states could lose their ability to enact new voter suppression laws without first having those laws screened by federal officials. Just as importantly, if other states realize that they risk the same fate, that could potentially discourage them from future acts of voter suppression.