Voters strike out at Supreme Court

by Sharon McCloskey, NC Policy Watch, October 22, 2014.

A string of calls on voting rights came down from the nation’s highest court in rapid succession over the past few weeks, as the justices sorted through emergency requests for rulings on laws governing the upcoming elections.

The first strike came in late September in an Ohio case, when the justices allowed that state to cutback its early voting period from 35 days to 28 days.

Strike two followed in cases out of North Carolina on October 8, when a majority on the court said that the state could eliminate same-day registration and ignore provisional ballots cast out-of-precinct.

But then the Wisconsin change-up came the next night, and the justices seemingly did a turnaround – leading some to suspect vote-trading behind the curtain – blocking that state’s voter ID law from taking effect.

Any glimmer of hope from that outcome was short-lived, though, as the justices delivered the third strike at dawn this past Saturday, clearing the way for a Texas voter ID law that a district court judge, following trial, called racist.

When the dust settled, attorneys, legal experts and court watchers had plenty of sorting to do, trying to make some sense of orders – handed down unsigned and without opinions — that directly impacted the rights of hundreds of thousands of voters.

The court’s seemingly routine manner of handling the cases miffed Justice Ruth Bader Ginsburg, who in her Texas dissent called her colleagues to task for ignoring clear evidence of voter discrimination and suppression.

“She’s not going down without a fight,” election law expert Rick Hasen wrote “and if this dissent stands for anything, it’s for the proposition that even if the court opts to erode the right to vote by way of unsigned orders at dawn, Ruth Bader Ginsburg will not let it be invisible to the rest of us.”

The scorecard

Ohio had a generous 35-day early voting period, which included a “Dream Week” during which voters could register and vote at the same time. But in February 2014 state officials cut the period back to 28 days and eliminated that same-day registration.

In the legal challenge that followed, both a federal district court judge and then a three-judge panel of the 6^th U.S Circuit Court of Appeals reinstated the old law for the November elections.

In what some election law experts called an expansive interpretation of applicable law, the courts found that the challengers could likely prove at trial that the 2014 changes violated Section 2 of the Voting Rights Act and the Equal Protection Clause of the 14th Amendment.

On an emergency application from state officials, and with polls set to open in less than day under the 35-day period, the U.S. Supreme vacated the lower court rulings by a 5-4 vote and upheld Ohio’s reduction of early voting days from 35 to 28.

Justice Ginsburg, along with Justices Stephen G. Breyer, Elena Kagan, and Sonia Sotomayor, would have kept the 35-day period, but like the majority on the court issued no written opinion detailing their reasons.

North Carolina’s case likewise landed before the justices on the state’s emergency application after the 4^th U.S. Circuit Court of Appeals, in a 2-1 ruling, overturned a lower court ruling.

Asking rhetorically at oral argument why the state of North Carolina wanted to stop people from voting, U.S. Circuit Judge James Wynn and his colleague Judge Henry Floyd ordered that same-day registration be restored and provisional ballots cast out-of-precinct be counted during the November election cycle.

On October 8, though, a majority of the high court justices reversed the Fourth Circuit without opinion and allowed those state restrictions to go into effect.

Justice Ginsburg dissented again, this time with an opinion joined in by Justice Sotomayor, noting in particular the litany of restrictive changes packed into the state’s omnibus bill:

North Carolina enacted omnibus House Bill 589, which imposed voter identification requirements, cut short early voting by a week, prohibited local election boards from keeping the polls open on the final Saturday afternoon before elections, eliminated same-day voter registration, terminated 16- and 17-year preregistration in high schools, authorized any registered voter to challenge ballots cast early or on Election Day, and barred votes cast in the wrong precinct from being counted at all. These measures would likely not have survived federal preclearance.

Wisconsin’s voter ID law came before the justices at roughly the same time as the voting law challenges from North Carolina did but with a different result.

A federal judge had permanently blocked that law after a two-week trial, finding that nearly 300,000 registered voters lacked the required ID, but the 7^th U.S. Court of Appeals later reversed that decision.

Then, an evening after the ruling in the North Carolina case and in a reversal that saw conservative justices on the dissenting side, the Supreme Court entered an order blocking the Wisconsin voter ID law from being effective in November.

Justice Samuel Alito wrote a terse dissenting opinion in the case, joined by Justices Antonin Scalia and Clarence Thomas, saying only that they did not believe the circuit court’s reasoning met the standard needed to vacate its ruling.

Texas too landed before the high court on a voter ID question but left with the opposite result after a 5 a.m. ruling handed down by the justices this past Saturday.

Following trial, U. S. District Judge Nelva Gonzales Ramos issued a blistering opinion, finding that the state’s voter ID law intentionally discriminated against African-American and Hispanic voters. 

The 5^th U.S. Circuit Court of Appeals quickly reversed that decision with barely an opinion of its own, and the Supreme Court then affirmed that ruling.

With that Texas, now in its early voting period, is proceeding with its voter ID provisions in place.

The high court’s ruling in the face of a trial court finding of intentional discrimination was significant. 

As SCOTUSblog’s Lyle Denniston noted: “This apparently was the first time since 1982 that the Court has allowed a law restricting voters’ rights to be enforced after a federal court had ruled it to be unconstitutional because it intentionally discriminated against minorities.” 

And that significance was not lost on Justice Ginsburg, who in her dissent – joined in by Justices Sotomayor and Kagan – referenced the evidence at trial as telling: 

Racial discrimination in elections in Texas is no mere historical artifact. To the contrary, Texas has been found in violation of the Voting Rights Act in every redistricting cycle from and after 1970. The District Court noted particularly plaintiffs’ evidence—largely unchallenged by Texas— regarding the State’s long history of official discrimination in voting, the statewide existence of racially polarized voting, the incidence of overtly racial political campaigns, the disproportionate lack of minority elected officials, and the failure of elected officials to respond to the concerns of minority voters. 

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 Takeaway

The Supreme Court’s rapid-fire orders on voting rights questions – issued without reasoned explanation – has led to plenty of conjecture by legal experts and court watchers about what’s to come in elections cases.

The simplest explanation has been that the high court was reluctant to upset voting practices so close to elections – a nod to the so-called “Purcell principle” that emerged in 2006 from a case bearing that name, Purcell v. Gonzalez.

In the Wisconsin case, Justice Alito alluded to as much when he began his dissent by saying “[t]here is a colorable basis for the Court’s decision due to the proximity of the upcoming general election.”

It’s also important to remember that the justices were responding to emergency requests for stays during the current election cycle and did not hand down dispositive rulings on the underlying constitutional issues.

Rulings on the merits may come at later dates, as each case now returns to its respective district or circuit court for further development.

The Wisconsin and the Texas cases – both concerning voter ID — have already had trials. And Wisconsin has been reviewed by the Seventh Circuit – so it may be the first case to make it back up to the Supreme Court on the merits of the constitutional claims.

The Ohio case will likely go back to the district court there for an eventual trial on the challenged early voting restrictions.

So too will the North Carolina cases, where the parties are already headed back to court in November to discuss what documents and other information they need for trial – including documents from state lawmakers which have been withheld under a claim of “legislative privilege.”

And all eyes will be on those cases when trial starts in the summer of 2015 because, compared to the voting law changes in Ohio, Minnesota and Texas, North Carolina’s are far more extensive and, as many experts have pointed out, collectively present a portrait of voter suppression.

That said, though – as two different district court judges found after hearing evidence at trial – hundreds of thousands of voters will be unable to cast their ballots this November because of voting law changes the U.S. Supreme Court allowed to go into effect.

http://www.ncpolicywatch.com/2014/10/22/voters-strike-out-at-the-supreme-court/