Richard L. Hasen is Chancellor’s Professor of Law and Political Science at the University of California, Irvine.
When it comes to jurisprudence
on voting rights, the Supreme Court stands at a crossroads. If the Court ends
up with a new liberal majority, it could limit the ability of states to pass
restrictive voting rules such as voter identification laws, boost minority
voting power in legislative and congressional districts under the Voting Rights
Act, and continue using the constitutional racial gerrymandering cause of
action to protect minority opportunity districts.
A new conservative majority
would be more likely, although not certain, to allow states greater leeway to
pass laws which make it harder to register or vote, limit minority voting power
in legislative and congressional districts under the Voting Rights Act (perhaps
even holding Section 2 of the act, which gives minorities a greater share of
political power, unconstitutional), and retool the constitutional racial
gerrymandering cause of action to make it harder to draw minority opportunity
districts.
Voter identification and the
voting wars
The Supreme Court has weighed
in twice with opinions on voter identification laws, although there will soon
be opportunities for the Court to weigh in once again.
The first case the Court
decided, Purcell v. Gonzalez, resulted in a short per
curiam opinion reversing a Ninth Circuit stay of Arizona’s implementation of
its voter identification law pending a full trial on the merits. The Court did
say that such laws might prevent voter fraud and instill voter confidence, but
the case is mostly thought of as one about election timing. Under the Purcell Principle, courts should be wary of
making changes to election rules in the period before the election, because
such changes may confuse voters and make life difficult for election
administrators.
In the 2008 case of Crawford v. Marion
County Election Board, the Court split three-three-three over a facial
attack on Indiana’s strict voter identification law under the Constitution’s
Equal Protection Clause in the Fourteenth Amendment. The three most
conservative Justices (Samuel Alito, Antonin Scalia, and Clarence Thomas)
rejected the argument that such laws were unconstitutional, ruling that if the
law was a minor burden for most voters it was constitutional even if it imposed
heavier burdens on a smaller class of voters.
The narrower plurality opinion
(Chief Justice John Roberts and Justice Anthony Kennedy and John Paul Stevens)
agreed the law was constitutional because it appeared to burden most voters
only slightly. But these Justices left open the possibility that voters facing
special burdens could be entitled to as-applied exemptions to the law. Three
dissenting Justices (Stephen Breyer, Ruth Bader Ginsburg, and David Souter)
argued that the law burdened many voters, and it was not justified by any state
interest, given that the state failed to prove the law was necessary to prevent
voter fraud or promote public confidence in the election process.
After Crawford, and after the Court’s 2013 opinion in Shelby County v.
Holder, which in striking down a part of the Voting Rights
Act freed states with a history of racial discrimination in voting from having
to get approval before making further changes to their voting rules, states
with Republican legislatures began enacting more restrictive voting rules.
These laws included stricter voter identification laws, limits on the counting
of provisional ballots, and rollbacks in voting convenience measures, such as
generous early voting periods. Some of these new laws led to lawsuits, many of
which reached the Court on an emergency basis before the 2014 election. The
Court seemed to put thePurcell Principle in play in
handling the emergency motions in 2014, which led the Court to block Wisconsin
from implementing its new voter ID law but to allow Texas to continue using its
law, even though federal district courts had found both laws unconstitutional
and violations of Section 2 of the Voting Rights Act.
Those cases from 2014 are now working their way up
the appellate ladder after final adjudication on the merits, with
some soon landing at the Court. The first up on the merits will likely be North
Carolina’s cert. petition challenging a Fourth Circuit decision striking down
portions of North Carolina’s law on the ground that North
Carolina enacted it with a racially discriminatory purpose.
Texas also may
choose to bring to the Court a petition challenging the en banc Fifth
Circuit’s holdingthat Texas violated Section 2 by passing its voter
identification law with a racially discriminatory effect, and that the trial
court should reconsider the question of discriminatory intent.
These cases and ones like them
present a host of thorny legal questions: how does a court determine if a state
passes a voting law with a racially discriminatory intent, in violation of both
the Constitution and the Voting Rights Act, when race and party
correlate so well, especially in the South? Can North Carolina defend
itself by saying it had a partisan intent, even if the law had an effect on
African-American voters who choose to vote for Democratic candidates?
Under
Section 2 of the Voting Rights Act, what is the proper test for determining
whether a law making it harder to register or vote denies minority voters the
same opportunity as other voters to participate in the political process and to
elect representatives of their choice? To what extent may a state’s cutback in
voting convenience such as more limited early voting be a Voting Rights Act
violation when other states have never offered the convenience in the first
place?
We do not know if the Court
will take up these issues, and if it does we do not know how it is likely to
resolve them. What we do know is that more conservative Justices tend to be
skeptical of broad voting rights claims in these cases and more protective of
state prerogatives in setting the rules for voting. Liberals tend to be more
skeptical that the state has a legitimate interest in these laws, seeing them
as a pretext for voter suppression, and more likely to believe the laws burden
voters.
But firm predictions are hard
to make: during the conservative Roberts Court period, the Court did not go
as far as it could have in adopting a conservative vision for voting
rights. And in the lower courts, ideological and partisan breakdown is not a
perfect predictor of how these cases are likely to be decided. The Fifth
Circuit is still a majority-conservative court, yet it voted nine to six in
favor of the voting rights plaintiffs in the Texas voter ID suit.
Further, even
judges who have supported the legality of voter identification laws in the
past, such as Judge Richard A.
Posner of the Seventh Circuit andJustice John Paul
Stevens, now retired from the Supreme Court, now have doubts following a decade’s
experience with the laws. Both voted to uphold Indiana’s voter identification
law in Crawford (Posner on the Seventh Circuit; Stevens
on the Supreme Court), but both now see the law as a means of suppressing the
votes of those voters likely to vote for Democrats.
Minority voting rights and
districting
When it comes to race and
redistricting, the Supreme Court has weighed in many times, construing the
standards for judging minority vote dilution under Section 2 of the Voting
Rights Act beginning with the 1986 case of Thornburg v. Gingles.
In recent years, the Court has
read Section 2 of the Voting Rights Act more narrowly, rejecting more expansive
readings which would require jurisdictions to draw more districts in which
minority voters would have a chance for influence. The Court has also limited
the ability to create minority opportunity districts when doing so would
require bringing together minority voters from different cultural or economic
areas within a state.
On these issues, liberal and
conservative Justices are likely to diverge, just as the Court diverged in theShelby County case over whether federal
supervision of voting is still necessary in parts of the country with a history
of racial discrimination in voting.
While it is hard to see the
right vehicle that could allow a liberal Court to overrule Shelby County, it is entirely possible that a liberal
majority Supreme Court would be more willing to uphold a new coverage formula
should Congress ever pass a renewed version of Voting Rights Act preclearance.
Further, it is likely that a more liberal Supreme Court would soften some of
the precedents reading Section 2 narrowly, allowing for the creation of more
districts with greater minority voting power. In contrast, a more conservative
Supreme Court could eventually rule that Section 2 itself is unconstitutional,
leaving states more discretion to pack or crack minority voting districts.
The future of racial
gerrymandering claims
Finally, the future balance of
the Court may determine what the Court does with the racial gerrymandering
cause of action, which originated in the Supreme Court’s 1993 decision in Shaw v. Reno. These cases began as a
conservative effort to limit the ability of states and the U.S. Department of
Justice to draw more minority opportunity districts under the Voting Rights
Act. In more recent years, however, especially in the 2015 case of Alabama Legislative
Black Caucus v. Alabama, the racial gerrymandering
cause of action has become a
tool for liberals and minority voters to stop Republican
states from packing minority voters in a smaller number of districts.
Justice Kennedy’s vote with
the four liberals has been key in this recent development of the law, and two
cases on the upcoming Court docket, McCrory v. Harris and Bethune-Hill v.
Virginia State Board of Elections, will reveal where the
current Court is on this question.
In future years, when Justice
Kennedy is no longer the deciding vote at the center of the Court, the racial
gerrymandering doctrine may either grow or shrink in importance depending upon
both the valence of the Court and the nature of the plaintiffs trying to use it
to control the districting process and it relationship to minority voting
rights.
***
Elections matter, and the
Supreme Court’s composition matters to voting rights jurisprudence. The
upcoming election will help determine the future of the Court, and the Court’s
future will help determine the scope of voting rights for years to come.
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