If you want to understand the terrible position that voting rights advocates find themselves in today, consider the position that supporters of reproductive rights faced not so long ago.
In 1992, Roe v. Wade survived a near-death experience — yet it also emerged severely weakened by the Supreme Court’s decision in Planned Parenthood v. Casey. Casey stripped the right to an abortion of its status as a “fundamental” right, and embraced a new framework for abortion cases that was proposed to the Court by the Reagan administration.
Then, in 2007’s Gonzales v. Carhart, the Court went even further. Carhart held that lawmakers have “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” It was practically an invitation for anti-abortion groups to develop sham studies and to produce biased experts that would create “uncertainty” about whether certain abortion restrictions were medically justified.
The result was a wave of so-called TRAP laws — “Targeted Regulation of Abortion Providers” — that masqueraded as health regulations, but that were really enacted to force abortion clinics to close down. One federal appeals court, in an opinion upholding a law that would have shut down at least 80 percent of Texas’ abortion clinics, held that states have sweeping authority to pass abortion restrictions so long as lawmakers can claim they are legislating on an area where uncertainty exists. “Medical uncertainty underlying a statute is for resolution by legislatures,” the court wrote, “not the courts.”
There are persistent rumors, fed by entirely believable sources, that Justice Kennedy plans to retire.
Of course, the most recent chapter of this saga did not end well for abortion opponents. In Whole Woman’s Health v. Hellerstedt, the Supreme Court recognized Texas’ TRAP law as a sham and reined in states’ ability to pass similar laws in the future. But one of the biggest lessons to emerge from Whole Woman’s Health was that Justice Anthony Kennedy, a Republican who occasionally votes with the Court’s liberal bloc, had meaningful disagreements with his fellow conservative justices. While they were happy to endorse a legal rule that effectively gutted Roe, Kennedy wasn’t.
It’s far from clear, however, that there is as much daylight between Kennedy and his fellow Republican justices on a different issue that’s faced increasingly harsh regulations on a state level: voting rights.
Though Kennedy occasionally breaks with the Court’s more hardline conservatives in voting rights cases, he also joined Chief Justice John Roberts’ opinion hobbling much of the Voting Rights Act. And he voted to reinstate the nation’s most aggressive voter suppression law — a law that was literally designed to target black voters — for the 2016 election.
And, while the Court decided not to take up a case seeking to permanently reinstate this law on Monday, Roberts wrote a brief statement indicating that this decision largely arose out of procedural anomalies unique to this one case. A majority of the Supreme Court appears eager to vote in favor of similar voter suppression laws once someone offers them a case that doesn’t present similar anomalies.
Oh, and there’s one other thing. There are persistent rumors, fed by entirely believable sources, that Justice Kennedy plans to retire. If he does under Donald Trump, his replacement will almost certainly be an unflinching conservative in the vein of Neil Gorsuch.
If anything, voting rights advocates find themselves in a far worse position than abortion rights supporters were in earlier this decade. The Supreme Court is sending loud signals to conservative lawmakers that those lawmakers have broad leeway to suppress the vote. Republicans, meanwhile, are receiving those signals loud and clear — as is evidenced by the wide away of voter suppression laws enacted in the states.
And this time, it is far from clear that Justice Kennedy will swoop in to save our rights.
TRAP laws, but for voting
There are striking parallels between TRAP laws targeting abortion clinics and the wave of voter suppression laws enacted by Republican state lawmakers.
TRAP laws are fundamentally about deception. They are laws that present an abortion restriction as something more innocuous — and more legal. The Texas law, for example, required abortion clinics to upgrade to sterile surgical facilities appropriate for the kinds of procedures where doctors cut open their patients and potentially introduce pathogens under the skin. On the surface, this seems like a perfectly sensible health law. Why shouldn’t abortions be performed in facilities similar to hospital operating rooms? But this is a fundamental misunderstanding of abortion procedures, which are not nearly as invasive or as risky as the procedures performed in surgical centers. Furthermore, many abortion clinics don’t even offer surgeries at all — instead only offering oral medications that induce abortion.
Sterile operating rooms in an abortion clinic, in other words, serve little purpose other than to make those clinics more expensive to operate.
The Texas law, for example, imposed stricter requirements on abortion facilities than the state imposed on other medical providers who perform much more dangerous procedures. And the per-clinic cost of complying with these rules could be as much as $3 million.
Now consider voter ID laws, which also claim to address a legitimate problem while really doing something more underhanded.
Laws requiring voters to show photo ID at the polls are ostensibly a solution to voter impersonation fraud — when someone shows up at the polls claiming to be someone else. But this kind of fraud is only slightly more common than dragons and elves. A Wisconsin study found only seven instances of fraud among the 3 million votes cast in the state’s 2004 election, and none were the kind that would be prevented by voter ID laws. Iowa’s Republican former Secretary of State Matt Schulz spent two years searching for a case of in-person voter fraud. He couldn’t find one. A Supreme Court case, which nonetheless upheld an Indiana voter ID law, was only able to identify a single case of in-person voter fraud over the course of 140 years.
Just as surely as TRAP laws shut down abortion clinics, voter ID laws also achieve their own not-so-well hidden purpose: keeping certain voters from the polls. Voter ID disproportionately targets students, low-income voters, and people of color, all of whom are likely to prefer Democrats over Republicans. Though studies disagree on just how much they shift the electorate to the right, the most dramatic findings indicate that “Democratic turnout drops by an estimated 8.8 percentage points in general elections when strict photo identification laws are in place,” as opposed to 3.6 percentage points for Republicans.
According to the National Conference of State Legislatures, seven states currently have strict voter ID laws — although that doesn’t include states such as Pennsylvania, North Carolina, and Texas where lower federal or state courts have struck down such a law. If the Supreme Court ultimately reverses one of these lower court decisions — and there are strong indications that it will reinstate Texas’ law when it gets the chance — that will give a bright green light to nearly every Republican-controlled legislature in the country that they are free to pass laws designed to keep many Democrats from the polls.
Many lawmakers aren’t wasting their time. According to the Brennan Center, 20 states enacted new voting restrictions since the Republican wave election in 2010 (although one of them, Rhode Island, is largely controlled by Democrats).
10 states have more restrictive voter ID laws in place (and six states have strict photo ID requirements), seven have laws making it harder for citizens to register, six cut back on early voting days and hours, and three made it harder to restore voting rights for people with past criminal convictions.
Meanwhile, the next round of Supreme Court litigation could open the door to a monster many Americans thought we’d slain more than fifty years ago — intentional voting discrimination on the basis or race.
Race discrimination for partisan purposes
Even though an overt racist did win second-place in the most recent presidential election, there are fairly few lawmakers in the United States who appear to believe that people of color are inherently inferior to white people and thus should be denied the right to vote. Most Republicans are happy to allow Justice Clarence Thomas, for example, exercise the franchise.
Instead, most modern racial voting discrimination cases involve a somewhat subtler kind of racism than the ham-handed tactics of the Jim Crow era.
Consider, for example, the North Carolina voter suppression law — the law that all four Republican justices voted to reinstate last year. This law, as a federal appeals court explains, was intentionally drafted to increase its impact on black voters and minimize its impact on whites.
North Carolina’s Republican-controlled legislature, Judge Diana Gribbon Motz explained, “requested data on the use, by race, of a number of voting practices,” then used this data to shape the law. Lawmakers amended the bill to exclude many of the alternative photo IDs used by African Americans” while retaining “only the kinds of IDs that white North Carolinians were more likely to possess.” They cut early voting days after data showed that African Americans “disproportionately used the first seven days of early voting.” They eliminated same-day registration after finding that black voters were especially likely to use it as well.
Yet, as law professor and voting rights expert Rick Hasen notes, there was also something missing from Judge Motz’s opinion. The court reached its “conclusion despite finding little evidence of racial animus.” That is, there there was little evidence that North Carolina’s Republican legislature discriminated against black voters because they wanted to preserve white supremacy as an end in and of itself.
Instead, North Carolina Republicans tried to disenfranchise large swaths of black voters because they knew that African Americans are especially likely to vote for Democrats. As Hasen notes, one poll found that “an astonishing 100 percent of African American voters supported Hillary Clinton.” North Carolina Republicans knew that, for every black person they kept from the polls, they were overwhelmingly likely to be improving their own party’s chances of victory.
It’s possible that the Supreme Court will hold that race discrimination is just fine so long as it is done for partisan purposes. And, indeed, Republican-controlled states have, at times, asked the courts to draw a rigid line between illegal discrimination and partisan gamesmanship that takes account of race.
In a long-running gerrymandering suit challenging Texas’ maps, for example, a lower court found that lawmakers “consciously replaced many of [a] district’s active Hispanic voters with low-turnout Hispanic voters in an effort to strengthen the voting power of [the district’s] Anglo citizens.” Texas, however, argued that this was okay because the maps were really “designed to increase the Republican Party’s electoral prospects at the expense of the Democrats” — not solely to disadvantage Hispanic voters and give a boost to white ones.
It is certainly possible that the Supreme Court’s Republican majority will decide that a voter suppression tactic can be either racist or partisan but not both — while simultaneously clinging to old precedents which make it very difficult to challenge purely partisan actions — but it’s at least as likely that they will simply return to the TRAP laws playbook to deny that laws with a racist impact are actually racist.
Last August, North Carolina’s effort reinstate its voter suppression law for the 2016 election was led by Paul Clement, the conservative superlawyer who functioned much like a Solicitor General for the Republican Party during the Obama years. In his court filing asking the justices to restore the law, Clement made a bold statement — that a major provision of a voter suppression law specifically designed to target black voters actually increased black turnout.
“The State has had multiple elections with 10 days instead of 17,” Clement told the Court, referring to the number of early voting days allowed after the new law cut the first seven. “And its requirement that each county maintain the same number of early voting hours as it did under the previous 17-day rule has actually significantly increased early voting, both generally and by minorities.”
The state’s primary evidence supporting this counterintuitive claim was that early voting did increase among people of color in 2014 relative to the previous off-year election in 2010. But there was also a very good reason for this increase which had nothing to do with the voter suppression law. The 2014 election featured a very hotly contested Senate race where the victor, Sen. Thom Tillis (R), won by less than two points. The top race in 2010, by contrast, was a snoozer of a Senate election where incumbent Sen. Richard Burr won by double digits.
For obvious reasons, turnout tends to by higher in years where the outcome of a major race is uncertain.
Nevertheless, Clement’s claim that higher turnout in 2014 vindicates the North Carolina law demonstrates just how easy it will be for judges — or justices — who wish to uphold voter suppression laws to find a reason to do so. Just as was the case in the Texas TRAP law case, there’s always some data point that can be taken in isolation, or some expert that can be paid to testify, or some self-interested way of looking at the facts that can be used to create the illusion of uncertainty where none really exists.
And that may be all that a GOP-controlled Supreme Court needs to bless a new wave of voter suppression laws.