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How the Supreme Court Made a Mess of Our Voting System

Nearly two dozen states have passed new laws making it harder to vote.

October 20, 2014

Cross-posted on Politico Magazine

Alexis de Tocqueville famously observed in 1835, “Scarcely any polit­ical ques­tion arises in the United States that is not resolved, sooner or later, into a judi­cial ques­tion.” That certainly describes the grand struggle over voting rights now unfold­ing in courtrooms across the coun­try. And when it comes to who can vote and when, a clear message is hard to discern. In recent days, rulings, appeals and motions have pinballed around the system, with the U.S. Supreme Court answer­ing emer­gency pleas, allow­ing some changes to take effect and tempor­ar­ily block­ing others, while key appeals head their way. The latest lurch: In a decision emailed out at 5 a.m. Saturday morn­ing, the justices let Texas imple­ment its contro­ver­sial voter ID law, the nation’s strict­est, just two days before early voting begins in the state.

Amid the confu­sion, an import­ant new element has emerged. The break­through? Facts. Two power­ful judi­cial opin­ion­s—one from a Texas trial judge, another from an esteemed appeals court jurist—and a land­mark govern­ment study have shed new light on the costs and consequences of restrict­ive voting laws. They answer some key ques­tions: Are these laws malevol­ent? (In Texas, at least, yes.) Do they provide a bene­fit that outweighs their cost? (No.) Do they suppress the vote? (Alarm­ingly, it seems, yes.) And can we prevent fraud without disen­fran­chising Amer­ic­ans? (Yes, abso­lutely.)

In a zone foggy with legal rhet­oric, these three docu­ments will—and should—live on beyond the 2014 elec­tion cycle. They might even help shape a new legal regime to protect voters while protect­ing against fraud. They’re worth a close read.

Here’s some back­ground: Over the past four years—and for the first time since the Jim Crow era—n­early two dozen states have passed new laws making it harder to vote. The laws range from cutbacks on early voting (Ohio and North Caro­lina), to a repeal of Elec­tion Day regis­tra­tion (Maine), to harsh rules requir­ing specific types of govern­ment iden­ti­fic­a­tion to vote (states from Texas to Tennessee). Flor­ida even cracked down on nonpar­tisan voter regis­tra­tion drives, forcing the League of Women Voter­s—hardly a Trot­sky­ist cell!—to shut down its oper­a­tions.

In 2011, my organ­iz­a­tion, the Bren­nan Center for Justice, calcu­lated that the first wave of these new laws, if imple­men­ted, could have made it far harder for five million citizens to vote. At first, the judi­ciary seemed to recog­nize that risk. In the run up to the 2012 elec­tion, courts around the coun­try routinely blocked or post­poned the new voting regu­la­tions. On Elec­tion Day, few of those disen­fran­chising laws were in effect.

Then last year, the U.S. Supreme Court stepped in. In Shelby County v. Holder, it gutted the land­mark 1965 Voting Rights Act by neuter­ing its require­ment, under Section 5 of the law, that states with a history of discrim­in­a­tion clear changes to voting regu­la­tions with a court or the Justice Depart­ment. The court was bitterly divided, five to four. During oral argu­ment in Febru­ary 2013, Justice Antonin Scalia called the Voting Rights Act little more than a “racial enti­tle­ment.” “Even the name of it is wonder­ful, the Voting Rights Act,” he added. “Who’s going to vote against that?” Ruth Bader Gins­burg, writ­ing in heated dissent, warned that gutting the law “is like throw­ing away your umbrella in a rain­storm because you are not getting wet.”

Predict­ably, many South­ern states once covered by the Voting Rights Act moved swiftly to imple­ment new, stricter voting rules. In other states, laws that had been post­poned in the run up to 2012 began to go into effect.

The result has been a paper storm of lawsuits, argued in courtrooms across the coun­try, as voting rights groups and the Justice Depart­ment chal­lenge these new restric­tions. Much hangs in the balance: This year, 21 states will hold elec­tions under rules enacted since 2011, seven of them for the first time. With control of the Senate and much else teeter­ing on micro­scop­ic­ally tight margins, laws that block eligible voters could have major effects.

That’s why these three new treat­ises are so import­ant.

The first came from a courtroom in Corpus Christi, Texas. Just hours after the Supreme Court issued Shelby County in 2013, Texas imple­men­ted its new voter iden­ti­fic­a­tion law. The stat­ute was nakedly partisan and almost comic­ally precise in its construc­tion: Texans could show a concealed carry weapons permit, but not a Univer­sity of Texas student ID. Repub­lican Attor­ney General Greg Abbott rushed to put the law in place. Abbott, of course, is now the candid­ate for governor who might bene­fit from the law’s conser­vat­ive tilt.

The U.S. Justice Depart­ment promptly sued Texas, as did voting rights groups. (The Bren­nan Center, together with the Lawyers Commit­tee for Civil Rights and the Dech­ert law firm, repres­ents the Texas NAACP and the state Mexican Amer­ican Legis­lat­ive Caucus in these cases.) The suits relied on Section 2 of the Voting Rights Act, which is still on the books. This section of the act prohib­its voting prac­tices that discrim­in­ate against minor­it­ies. But plaintiffs usually cannot obtain relief until after the offend­ing law is already in effect, and shifts the burden of proof of discrim­in­a­tion onto the law’s chal­lengers, a much tougher stand­ard. Previ­ously Section 2 had rarely been used to address voting law changes; it wasn’t neces­sary, given the pre-clear­ance option Now it was one of the few vehicles for redress left.

The clash produced a compel­ling nine-day trial. The lead witness was an elderly woman, Sammie Louise Bates, who test­i­fied by video. Bates grew up in Missis­sippi in the 1940s, and remembered smol­der­ing as she coun­ted out money so her grand­mother could pay the state’s notori­ous poll tax. Bates has voted regu­larly since she was 21. Today, she lives on Social Secur­ity and little else. After trying unsuc­cess­fully to cast a ballot that would count in 2013, she learned she would have to pay $42 to procure birth records from Missis­sippi ever to vote again. Sitting at a burn­ished confer­ence table in a law firm office, Bates was quizzed about why she had not quickly procured the paper­work. “I had to put $42 where it was doing the most good. It was feed­ing my family,” she explained. She gazed evenly at her ques­tioner. “We could­n’t eat the birth certi­fic­ate.”

Last week, the judge in the case, Nelva Gonzales Ramos, issued her decision. It stretched to 147 fact-crammed pages. She found that 600,000 Texas voters lacked an appro­pri­ate ID. She found that the legis­lature had rammed the proposal through, turn­ing aside any efforts to make the law less burden­some for minor­ity and poor voters. She noted that the state had provided only 279 substi­tute “free” voter ID cards. And she found only two cases in the previ­ous decade of in-person voter imper­son­a­tion—the only kind of fraud that a harsh ID rule would block.

Alarm­ingly, the law will be enforced anyway. In Saturday’s pre-dawn 6–3 ruling, the Supreme Court allowed the Texas law to stand for now. The justices offered no explan­a­tion. In recent weeks the court blocked a new voter law in Wiscon­sin, but allowed restric­tions in North Caro­lina and Ohio to proceed. A common thread seems reluct­ance to change rules close to Elec­tion Day. Sens­ible enough, but as Justice Gins­burg (together with Sonia Soto­mayor and Elena Kagan) vigor­ously noted in their dissent, the Texas case was distinct, the harm more clearly delin­eated by a full trial: “The greatest threat to public confid­ence in elec­tions in this case is the prospect of enfor­cing a purpose­fully discrim­in­at­ory law, one that likely imposes an uncon­sti­tu­tional poll tax and risks deny­ing the right to vote to hundreds of thou­sands of eligible voters.” The federal appeals court will even­tu­ally consider the state’s appeal of the Ramos verdict, but only after the elec­tion. In any case, by painstak­ingly docu­ment­ing the motives and impact of the law, Judge Ramos’ ruling will likely help shift the debate nation­wide.

The second “truth bomb” was equally power­ful, and lobbed from a more surpris­ing direc­tion. The back­story: In 2011, Wiscon­sin Repub­lican legis­lat­ors rushed through a new voting law. The ACLU sued. A trial judge blocked the law, find­ing it viol­ated Section 2 of the Voting Rights Act (and the Consti­tu­tion, too). An appeals court over­turned that ruling. Even­tu­ally, on Octo­ber 9, the U.S. Supreme Court froze the law, because it was too close to Elec­tion Day to be imple­men­ted.

Amid the legal flurry, Chicago appeals Judge Richard Posner weighed in. He wanted the trial court’s ruling to be heard by a wider group of appeals judges, not just the panel of three that had already ruled. With five judges for rehear­ing the case with a larger panel, and five against, the tie went to the state of Wiscon­sin. Posner wrote a 43-page dissent. Posner is no anonym­ous scrib­bler. He is the most cited legal scholar of the 20th century, accord­ing to the Journal of Legal Stud­ies. He is also a lead­ing conser­vat­ive. And he wrote the opin­ion uphold­ing Indi­ana’s voter ID law—a ruling affirmed by the Supreme Court in Craw­ford v. Marion County in 2008. At the time, before Indi­ana’s milder version of voter ID had gone into effect, Posner found there were inad­equate facts to justify over­turn­ing the legis­lature. Like other judges, too, he treated the law as a low-stakes tech­nic­al­ity. In Reflec­tions on Judgingpublished last year, he already hinted at a change in heart, call­ing the new laws “voter suppres­sion.”

Posner’s Wiscon­sin dissent is a master­piece. With with­er­ing preci­sion, he noted little evid­ence of in-person voter imper­son­a­tion in the state. “Some of the ‘evid­ence’ of voter-imper­son­a­tion fraud is down­right goofy, if not para­noid, such as the nonex­ist­ent buses that accord­ing to the ‘True the Vote’ move­ment trans­port foreign­ers and reser­va­tion Indi­ans to polling places,” Posner wrote. In Wiscon­sin (as else­where), it costs money to obtain the under­ly­ing docu­ments needed to procure the voter ID card. Posner is known for using cost-bene­fit analysis in legal analysis: Here he finds the burdens of the new law vastly outweigh possible gains. “As there is no evid­ence that voter-imper­son­a­tion fraud is a prob­lem, how can the fact that a legis­lature says it’s a prob­lem turn it into one? If the Wiscon­sin legis­lature says witches are a prob­lem, shall Wiscon­sin courts be permit­ted to conduct witch trials?”

Finally, he takes after the blasé opin­ion writ­ten by other judges who would uphold Wiscon­sin’s law.

“The authors’ over­all assess­ment is that ‘voter ID laws don’t disen­fran­chise minor­it­ies or reduce minor­ity voting, and in many instances enhance it’ [emphasis added],” Posner wrote. “In other words, the authors believe that the net effect of these laws is to increase minor­ity voting. Yet if that is true, the oppos­i­tion to these laws by liberal groups is sense­less. If photo ID laws increase minor­ity voting, liber­als should rejoice in the laws and conser­vat­ives deplore them. Yet it is conser­vat­ives who support them and liber­als who oppose them.”

Posner’s blast has limited imme­di­ate legal import. It was, after all, a dissent, and from a highly tech­nical decision on a request for a new hear­ing, at that. The U.S. Supreme Court already has moved beyond it. But his voice carries undeni­able power. Perhaps it can help.

Does all this legal huff­ing and puff­ing matter? A third real­ity check, this one a care­ful study, suggests the stakes are high.

The nonpar­tisan Govern­ment Account­ing Office (GAO) looked at the impact of the new strict voter ID laws. This is more novel than it might seem. Yes, a surpris­ing number of poten­tial voters lack needed paper­work. The Bren­nan Center, for example, found that 11 percent of eligible voters in the United States do not have a driver’s license or similar govern­ment docu­ment, a find­ing confirmed by numer­ous other stud­ies (and cited by Judge Posner). These laws could make it harder for many to cast their ballots. But do they really suppress the vote? That ques­tion has been harder to answer. Many factors affect turnout, and only a few states have imple­men­ted the strict­est rules. Maybe those who lack iden­ti­fic­a­tion would­n’t vote anyway.  

The GAO took a hard look. Its find­ings about depressed turnout are, well, depress­ing. The authors looked at Tennessee and Kansas, compared them to similar states with differ­ent laws and assessed a dizzy­ing number of complic­at­ing factors. The new laws do, in fact, dampen voting—but not for every­one. Turnout dropped 1.9 percent in Kansas, and 2.2 percent in Tennessee, the report found, and the declines “were attrib­ut­able to changes in those two states’ voter ID require­ments.” Turnout fell most among African-Amer­ican voters, young people and new voters. The Wash­ing­ton Post calcu­lated that’s 122,000 fewer voters. Finally, a govern­ment program that works as inten­ded!

To be clear: These reports do not suggest that there should be no require­ment for iden­ti­fic­a­tion of voters. Judge Ramos care­fully compares Texas to other, less burden­some systems. And there are risks to elec­tion integ­rity. Chief among them is the ramshackle paper-based voter-regis­tra­tion system, which fails to include tens of millions of eligible voters while simul­tan­eously includ­ing double list­ings and myriad other errors. Good-faith efforts to modern­ize elec­tions could address fraud concerns without redu­cing rights and slicing off sectors of the elect­or­ate. The bipar­tisan Pres­id­en­tial Commis­sion on Elec­tion Admin­is­tra­tion, chaired by Romney lawyer Ben Gins­berg and Obama coun­sel Bob Bauer, shows how to find common ground. (Though they care­fully sidestepped the gnarly topic of voter ID, many of their other recom­mend­a­tions would drain the issue of partisan intens­ity.)

Those of us who focus on protect­ing the right to vote must recog­nize that protect­ing elec­tion integ­rity is crit­ical to the health of Amer­ican demo­cracy. Voter iden­ti­fic­a­tion, as a concept, remains widely popu­lar. That’s under­stand­able. I am actu­ally for voter ID. I’m just against requir­ing ID that lots of Amer­ic­ans do not have.

Will these three eye-open­ing comment­ar­ies end the debate over voting? Of course not. Amer­ic­ans have struggled over who could cast ballots since our earli­est days, when only white men with prop­erty could vote. And despite de Tocqueville’s obser­va­tion, the ulti­mate decision may not come in the courts. We don’t know what the Supreme Court will say on any of these matters, when the cases reach the court for full, rather than emer­gency, consid­er­a­tion. Ulti­mately, the fight for voting rights will be won in the court of public opin­ion. And lucky for those of us who value the right to vote as much as the integ­rity of the elect­oral system, that’s where these power­ful new argu­ments may ring loudest.

(Photo: AP)