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“A Much More Difficult Response”: Should The Democrats Abandon Hope Of Getting Relief From Voter Suppression In The Courts?

Yesterday there were two rulings on voting rights cases, both of which were decided in favor of the liberal side of the argument. But don’t get too excited. I hate to be an eternal pessimist on this issue, but neither case is likely to turn out the way liberals and Democrats want. In fact, we’re almost at the point where — until the current makeup of the Supreme Court changes — liberals should keep themselves from ever thinking the courts are going to stop Republican efforts at voter suppression.

I’ll get to the consequences of that in a moment, but first let’s look at the two cases yesterday. The first was in Texas, where a federal judge struck down the state’s voter ID law. In refreshingly blunt language, the judge called the law an “unconstitutional poll tax,” and said that the legislators who passed it “were motivated, at the very least in part, because of and not merely in spite of the voter ID law’s detrimental effects on the African-American and Hispanic electorate.” Which is absolutely true, but that doesn’t mean the ruling is going to be upheld by a Supreme Court that has made it clear that they have little problem with almost any restrictions on voting rights.

But what about the Wisconsin case? There, the Supreme Court halted the implementation of a voter ID law yesterday, so doesn’t that mean they’re open to striking down voter ID laws? Not really. Ian Millhiser explains:

Although the Supreme Court’s order does not explain why the Court halted the law, a short dissenting opinion by Justice Samuel Alito provides a window into the Court’s reasoning. Alito begins his dissent by admitting that “[t]here is a colorable basis for the Court’s decision due to the proximity of the upcoming general election.” In a 2006 case called Purcell v. Gonzalez, the Supreme Court explained that judges should be reluctant to issue orders affecting a state’s election law as an election approaches. “Court orders affecting elections,” according to Purcell, “can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.” It is likely that the six justices who agreed to halt the Wisconsin law relied on Purcell in reaching this decision.

Just the other day, the Court allowed a North Carolina voter suppression law to go forward, but in that case the law had already been implemented. And that’s why we shouldn’t be encouraged by the Wisconsin ruling: it doesn’t imply that the Court believes these restrictions are unconstitutional, only that it would be a mess to have them take effect just a few weeks before the election. It’s a narrow question of election procedure.

It would be going too far to say that Democrats should just abandon all court challenges to these voting laws. You never know what might happen—by the time the next major case reaches the Supreme Court, one of the five conservatives could have retired. But the only real response is the much more difficult one: a sustained, state-by-state campaign to counter voting suppression laws by registering as many people as possible, helping them acquire the ID the state is demanding, and getting them to the polls. That’s incredibly hard, time-consuming, and resource-intensive work—much more so than filing lawsuits. But Democrats don’t have much choice.

 

By: Paul Waldman, Contributing Editor, The American Prospect, October 10, 2014

October 13, 2014 Posted by | U. S. Supreme Court, Voter Suppression, Voting Rights | , , , , , , | Leave a comment

“Judge Slams Voter Suppression Law”: ‘Why Does The State Of North Carolina Not Want People To Vote?’

Voting rights advocates in North Carolina caught a lucky break on Thursday, where it was revealed that the panel of three judges who would consider that state’s comprehensive voter suppression law included one Clinton appointee, Judge Diana Gribbon Motz, and two Obama appointees, Judges James Wynn and Henry Floyd. Last month, a George W. Bush appointee to a federal trial bench in North Carolina allowed the law to go into effect during the 2014 election, the panel of three judges from the United States Court of Appeals for the Fourth Circuit are now considering whether to affirm or reverse that decision. They heard oral arguments in the case on Thursday.

Several provisions are at issue in this case that all make it more difficult for residents of North Carolina to cast a vote. One provision cuts a week of early voting days. Another restricts voter registration drives. A third implements a strict voter ID law, although that provision does not take effect until 2016, so it would be reasonable for the court to decide not to suspend it during the 2014 election.

One provision that received a great deal of attention from the judges during Thursday’s oral arguments in this case is a change to the state law that causes ballots to be tossed out if a voter shows up in the wrong precinct. For the last decade, voters who showed up at the wrong precinct would still have their votes counted in races that were not specific to that precinct, so long as they voted in the correct county. The new law prohibits these ballots from being counted at all. According to the Associated Press, that means thousands of ballots will be thrown out each election year.

Judge Wynn, the only member of the panel who lives in North Carolina, appeared baffled by this provision. Explaining that he lives very close to a precinct that is not his assigned polling place, he asked the state to justify why his vote should be thrown out if he did not travel to a precinct that is further away from his home. At one point, his questions grew quite pointed — “Why does the state of North Carolina not want people to vote?” Wynn asked. At another point, he described a hypothetical grandmother who has always voted at the same place. Why not “let her just vote in that precinct?” he wondered?

An attorney defending the North Carolina law spent a great deal of his time at the podium arguing that it would be too disruptive for a court to suspend parts of North Carolina’s election law this close to the November elections. As a legal matter, this is a strong argument. In a 2006 case called Purcell v. Gonzalez, the justices reinstated a voter ID law that had been halted by a lower court. They explained that “[c]ourt 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.”

Yet the judges seemed skeptical of this argument as well, questioning what evidence the state could show that voters would actually be confused. When an attorney argued that restoring lost voting rights could be logistically challenging for the state, Judge Floyd asked whether “an administrative burden [can] trump a constitutional right?”

The argument that judges should heed Purcell‘s warning and be cautious about changing voting law close to an election also did not convince a much more conservative panel considering another voter suppression law in Wisconsin. Earlier this month, a panel of three Republican judges reinstated a voter ID in a single page order issued the same day that they heard oral arguments in the case. At the time, election law expert Rick Hasen criticized this order as a “very bad idea,” in part because of the reasons stated in Purcell. There are already early signs that Hasen was correct.

The Wisconsin case is already making its way to the Supreme Court, and the North Carolina case is likely to wind up there as well, especially if the Fourth Circuit rules against the state’s law. Should both cases come before the justices, that means that they will be confronted with one case where a court changed a state’s election law in a way that Democrats generally approve of, and another case where a court changed the state’s election law in a way that Republicans generally approve of. Both of these changes, moreover, would be made close to an election.

If the conservative Roberts Court really meant what it said in Purcell, then it is likely to allow the North Carolina law to go into effect while suspending the Wisconsin law. Should it allow both laws to take effect, however, that would raise serious concerns about whether the justices are willing to apply the same rule to every case, regardless of whether the rule benefits Democrats or Republicans.

 

By: Ian Millhiser, Think Progress, September 29, 2014

September 30, 2014 Posted by | North Carolina, Voter Suppression, Voting Rights | , , , , , , , | Leave a comment

   

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