Tuesday, April 07, 2020

The GOP's Decade-Long Efforts to Kill Voting Rights

By Eric Segall

There is going to be an election in Wisconsin today despite the fact that millions of people likely won't go to the polls because of the reasonable concern that doing so might get them exposed to the potentially deadly Covid-19 virus. The Democratic Governor of the state wanted to postpone the election but he was overturned by the GOP-controlled legislature. Making matters worse, late yesterday the United States Supreme Court made absentee voting in Wisconsin much harder in an opinion, wait for it, joined by five Republicans with four Democrats dissenting. Essentially this Wisconsin debacle is the logical result of a decade-long national strategy by the Republican Party to stop as many people as possible from voting, especially if they happen to be people of color.

In the mid-term elections of 2010, Republicans swept statehouses across the country, turning many blue legislatures into red legislatures. Thus began an effort by the Republican Party to make it harder for Americans to vote (and to gerrymander in the most partisan way many state legislative maps, but that's a story for a different post). These efforts include heightened Voter ID requirements, rules that deter college students from voting, criminalizing effective methods of voter registration drives, closing voting places on Sundays, reducing the number of voting places, felon disenfranchisement, and purging voter rolls. Many of these efforts have been sanctioned by five Republicans on the United States Supreme Court (both before and after Justice Anthony Kennedy's retirement).

Many of the voter suppression efforts listed above were adopted by states for the specific purpose of deterring people of color from voting because generally racial minorities vote for Democrats. These efforts have been made much easier by the notorious Roberts Court 5-4 decision in Shelby County v. Holder, which struck down the key part of the Voting Rights Act that required states with long histories of enacting racially discriminatory voting rules from adopting such rules without the consent of either a three-judge court or the United States Department of Justice. To reach its result, the Roberts Court had to make up out of whole cloth an anti-textual, anti-historical principle of equal state sovereignty that the Court had explicitly rejected in the 1960's.

In the days following that ruling Texas, North Carolina and other states and jurisdictions passed voter suppression rules that they could not have enacted prior to Shelby County. According to Meghan Tinsley:
The reaction to Shelby County v. Holder was immediate: the state of Texas announced that its voter ID requirement, which had been blocked as discriminatory, would go into effect before the next election. North Carolina, likewise, introduced a range of new measures, including a voter ID requirement, a shortened early voting period, a requirement that voters only cast their ballot in their assigned precinct, and the elimination of same-day registration and voting – eliminating measures that had increased voter turnout among African-Americans. The state of Alabama likewise introduced a voter ID requirement – and then shuttered offices in predominantly black counties where voters could obtain the required ID cards. By Election Day 2016, there were 868 fewer poll places available to voters than there had been three years earlier.
Although Shelby County gathered the most headlines, the GOP-controlled Supreme Court has issued numerous other decisions effectively telling the Republican Party that its efforts to stop people from voting will meet with approval when they get to the nation's highest Court. In 2018, the Court, in the words of Adam Liptak, the Supreme Court reporter for the New York Times, "upheld Ohio’s aggressive efforts to purge its voting rolls, siding with Republicans in the latest partisan battle over how far states can go in imposing restrictions on voting." 

Also in 2018, in a case involving Texas's efforts to discriminate against minority voters through racially based redistricting, the Court, in the words of election law expert Rick Hasen, "eschewed the judicial minimalism it has used to avoid other contentious issues—such as partisan gerrymandering and the clash between anti-discrimination laws and religious liberties—to contort rules limiting its own jurisdiction so that it could give states like Texas freer rein for repression of minority voting rights."  This case was extremely important to the GOP crusade to stop people from voting because, again in the words of Hasen, the 5-4 holding made it "well near impossible for plaintiffs to prove that states have engaged in intentional racial discrimination so as to put those states back under federal supervision for voting under Section 3 [of the Voting Rights]."  That provision, now gutted by the GOP Justices, allowed the federal government to put states that used to be covered by the Voting Rights Act back under its coverage of the law if they engaged in intentional racial discrimination in voting, which the lower court had found to be the situation in the Texas case. That finding was reversed by the Supreme Court.

And on it goes. Across the country GOP-controlled legislatures, with the full blessing of the the Republican-controlled Supreme Court, are doing everything they can to put obstacles in the way of people voting. This tsunami of voter suppression came to a head yesterday when the GOP-controlled Wisconsin legislature decided to hold an election during a pandemic when people in their own state are being told to stay indoors. To make matters worse, also yesterday, the United States Supreme Court limited the time absentee ballots could be counted, further reducing the number of people whose votes will matter. In Wisconsin, voting is now a matter of life or health, exactly as the Republican Party wants it--a severe threat to our democracy as we know it.


Laura said...

I read last night’s SCOTUS decision. I agree with Justice Ginsberg that the decision boggles the mind, but for slightly different reasons. I believe the majority opinion, which was written in haste, was poorly written and poorly reasoned. For example,
1) To quote Amy Howe: “By changing the election rules so close to the election date,” the justices continued, Conley had run afoul of the Supreme Court’s repeated admonition that “lower federal courts should ordinarily not alter the election rules on the eve of an election.”
My question: if the pandemic circumstances right now are insufficient to overcome the “should not ordinarily” standard, what circumstances would ever be enough to overcome that standard? It reminds me of the (successful) argument/plea made to the Tx Criminal Court of Appeals in the Andrea Yates case: if this doesn’t meet the definition of insanity, what does?
2) Justice Ginsberg made a very compelling point in this regard: wasn’t the majority violating its own standard by changing the rules at the 11th hour?
3) The majority inferred a whole lot from the fact that the plaintiffs didn’t ask for an extension in its original pleading for relief and made it sound like the district court granted relief erroneously because the judge went beyond what was initially asked for by the plaintiffs. Ginsberg pointed out that they raised the matter at the hearing. That was kind of unfair characterization of the matter by the majority. Further, the majority went out of its way to claim that it wasn’t making a finding that the plaintiffs waived their claim for an extension simply because they did ask for it in their original petition, but then it turned around and pretty much drew a dispositive inference from it. Seems a bit like a shell-game logic, in my mind.
4) The majority didn’t make any effort to explain the underlying legal basis for its (very monumental) decision, other than assert the Purcell and make a brief reference to extraordinary relief, in the injunctive sense. Ginsberg did a much more thorough job of identifying the issue: voter disenfranchisement. The clarity of the majority’s reasoning is very important because it helps the voters understand the logic, even if they read about it only in a news article.
5) The majority also hyper focused on the potential for early disclosure of voting results. But to what end? As Ginsberg noted, there was an injunction addressing it. And it’s not like election administrators don’t know how to protect against disclosure, even without an injunction, although that it very useful and protective to have it. Either way though, the risk of disclosure is present. Also, why was the majority seemingly convinced that the election administrators wouldn’t still tally the votes in a similar manner as they would under any other circumstances? I don’t know what to make about the majority’s fleeting reference to enjoining parties not in the suit, but that’s because I don’t know enough about the issue. At the end of the day, I just got an overall sense that the majority was looking for anything to hang its hat on to justify its intervention.

Jonathan Sinclehoff said...

I completely. The majority’s opinion was poorly reasoned and had no real justification except 1) we don’t normally mess with elections; 2) the plaintiffs didn’t specifically ask for this; and 3) the specific relief granted could fundamentally change the nature of the election. Those points are true and totally inapposite. Focusing only on 3) (since you did such a good job with the other reasons), the majority completely ignored all the evidence that this election is ALREADY fundamentally in trouble. Judge Conley’s decision explained that there will be very few available polling places today because there aren’t enough volunteers to do anything. Additionally, thousands of people won’t get their absentee ballots until after today, which will be too late to vote. This DESPITE the fact that they timely requested their ballots. The election is already changed by the circumstances.
More importantly, if you take this to it’s logical conclusion, then federal courts can’t take ANY action that could affect an election so close to the deadline - if ever. That’s just nonsensical.

Joe said...
This comment has been removed by the author.
Joe said...

The nuances of why the majority is wrong aside -- see, e.g., a recent post at Election Law Blog challenging another blog post in part -- the bottom line of the discussion here is correct. And, this very well needs to be taken as part of a wider Roberts Court whole. Major League Baseball has been suspended. No umpiring in D.C. there either.

The ultimate villain here is the legislature. The governor didn't want to act alone and called back the legislature. It refused to act and adjourned in seconds. The governor than suspended on his own authority but left it in the hands of the legislature again to address the situation. As it should -- the legislature and normal electoral rules (that should factor in emergencies) should apply. The state court overturned the governor by split vote on statutory grounds. So, SCOTUS couldn't avoid deciding. But, courts here are last resorts.

Indiana had a scheduled primary in May, but postponed. Not all Republican governments here did a bad job. But, the Wisconsin legislature (which has partisan gerrymander issues too) did. Meanwhile, ultimately, the Supreme Court will have to decide if so-called "faithless electors" have a constitutional right to go against the majority vote. In an election that possibly might go down to a few electoral votes.

Rick Hasen on his Election Law Blog and elsewhere has flagged the dangers for November. We need clear rules in place to address the situation, including regarding absentee voting. We need more money and resources. This is largely on the political branches. I realize ES will say "the courts are too" but you know what I mean. The Supreme Court needs to have a smaller target.

Laura said...

This Supreme Court decision rewards obstinance by legislatures. it rewards bad behavior by state legislatures and political parties. It rewards foot dragging (to get as close to the election as possible so a suit comes at the latest possible date) (if a suit is brought too early, who knows if a would say it’s a political question—Bush v Gore be damned, or find some other basis to punt it back to the state legislature). Last night decision pretty much says: 1) if a majority in a state legislature refuses to work the minority, that’s the end of it 2) because surely SCOTUS is unlikely to help out the minority (I guess it will depend on what the definition of “so close to an election” is under Percell or whatever case), and 3) it’s likely that any circumstances created by the pandemic will never overcome the “should not ordinarily” test. I’m cynical about it all. I just pray we don’t end up with a 20th-anniversary-Bush-v.-Gore scenario or “Bush v Gore Pandemic Edition: How Conservative Justices Intervened to Structure All Election Protocol in 2020.”

Bad Wolf said...

In all seriousness, could the Governor have simply thanked the Supreme Court for their "advice" and then instructed the elections office, which was under his control, to stand down (or fired everyone like Trump does)? Akin to "John Marshall has made his decision; now let him enforce it!" kind of thing? With it being the next day, what could the SC have possibly done?

Joe said...

Well, it wouldn't have just been him -- basically the electoral officials would be breaking the law, including after the state supreme court already told him that on his own authority that he could not postpone. Once you start down that path ...

what if, e.g., some Republican governor decided not to follow a federal court order [outside of Texas, there was some success] to allow abortions to continue or whatever.