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Challenges to State Voter ID Laws Signal Our Need for a Ninth Justice

Monday, October 17, 2016

Federal courts have been key in upholding the fundamental right to vote.

A month out from the first presidential election since the U.S. Supreme Court eviscerated the Voting Rights Act, courts across the country are brimming with challenges to state laws meant to blunt the growing voting power of racial minorities.

In many cases, the courts have struck down these laws, reinforcing the Constitution's promise of equal access to the ballot box. But the future of voter suppression hangs in the balance until the next Supreme Court justice is confirmed.

Curtailing A Constitutional Right

A century and a half after the 15th Amendment guaranteed all citizens the right to vote regardless of race, and a half-century after the 1965 Voting Rights Act breathed new life into that amendment, more than a dozen states are trying to roll back the one constitutional right from which our democracy springs.

Most of these challenges come as the result of restrictive laws passed after the U.S. Supreme Court gutted a key portion of the Voting Rights Act in its 2013 Shelby County v. Holder decision.

These laws impose onerous voter identification requirements, limit early voting, and generally make it harder for minorities to exercise their right to vote.

The spate of recent cases over these laws are establishing important precedents. The courts are carefully reviewing state laws to ensure they respect the Constitution's promise of equal political access.

Recent rulings have even recognized that state concerns about in-person voter fraud may be a pretext for racial discrimination.

Nevertheless, this election season offers a reminder of what was lost when Chief Justice John Roberts Jr. and his conservative colleagues ravaged the Voting Right Act. In response to rulings protecting the right to vote for all, states have acted to circumvent court orders striking down or limiting restrictive election regulations.

In North Carolina, for example, after the U.S. Court of Appeals for the Fourth Circuit struck down a state law cutting back on early voting, state election boards still slashed early voting in a number of counties.

As Election Day approaches, plaintiffs are having to go back to court to try to get the original orders enforced. Preventing this kind of gamesmanship was at the heart of the preclearance requirement struck down in Shelby County.

Contrary to Chief Justice Roberts' opinion in Shelby County that "things have changed dramatically in the past 50 years," several federal courts have concluded that these new state laws impede the voting rights of racial minorities, perpetuate past discrimination and serve no government interest.

July Rulings

The Fifth Circuit struck down a Texas law in July that allowed gun permits but not government-issued employee or student photo identification cards to be used as voting ID.

The court recognized that "neutral reasons can and do mask racial intent" and that "people hide discriminatory intent behind seemingly legitimate reasons." Texas asked the U.S. Supreme Court to hear the case in September.

The Fourth Circuit also in July struck down an expansive North Carolina law that imposed a restrictive voter ID requirement and eliminated a host of practices that had been designed to promote minority voting participation.

The court said that just when "African Americans were poised to act as a major electoral force," the state enacted "the most restrictive voting legislation seen in North Carolina since the enactment of the Voting Rights Act of 1965 … target[ing] African Americans with almost surgical precision."

North Carolina asked the Supreme Court to stay that decision but, by an equally divided vote, the high court left the ruling in place for this election.

During the same month in Wisconsin, two federal courts — one in the Eastern District of Wisconsin and one in the Western District of Wisconsin — held Wisconsin's voter ID law ­unconstitutional and ordered the state to provide an alternative for voters who cannot obtain a qualifying ID with "reasonable effort."

One of those courts also struck down laws that restricted early voting and imposed a longer residency requirement on voters. Based on evidence that the state was violating the court's injunction, a federal judge in the Western District case has announced he would order the state to give better information to voters who lack identification.

In September, the D.C. Circuit blocked efforts by Kansas, Alabama and Georgia to require a person to provide proof of citizenship to register to vote in federal elections, a requirement that would disproportionately affect minorities.

Federal Courts Are Key

Litigation in many cases is ongoing. That's why the ninth Supreme Court justice is so important. With the short-handed court unable to resolve some of the most contentious cases that come before it, the next justice will have enormous power to help settle for decades to come how far states can go with voter ID laws that restrict the rights of minorities.

For now, one thing is clear: federal courts have played a key role in upholding the fundamental right to vote for all people this November and in ensuring that states abide by the Constitution.