August 15, 2016

On July 29, federal courts invalidated portions of voter-suppression laws in North Carolina and Wisconsin. These decisions are important for a number of reasons. The Wisconsin decision has been stayed by a panel of the 7th Circuit, but it matters where these two cases and other recent voters’ rights decisions will go - not only in the next couple of months, but over succeeding election cycles and redistricting processes.

First, they remind us that “Voter ID laws” is a shorthand - but very inaccurate - media label used to identify these kinds of laws. They may require voters to obtain and present certain kinds of identification at polling places (which has generally been upheld by the courts as a requirement for voting), but they often do far more to restrict voting. For example, the NC and WI laws also shrank early voting periods and in-person-absentee voting periods - both important to poorer and minority voters.

Second, the power of the Voting Rights Act has to an extent survived the damage that the Supreme Court did to it in the Shelby County decision, which invalidated the Section 5 “pre-clearance” mandate that required certain states and smaller governmental units to obtain approval from the U.S. DOJ before instituting new voting processes. As the plaintiffs in NC and WI showed, the VRA still can be a potent instrument for protecting voters’ rights and preventing voter-suppression. Specifically, plaintiffs successfully argued in both cases that Section 2 of the VRA required invalidation of certain provisions of the two states’ laws.

Third, the results in these two cases underscore the importance of control of the White House and Senate for either party. Judicial selection can and does make a substantial difference in litigation over public-policy outcomes. For example, the District Court judge who upheld the NC law was a W appointee; the Circuit Court panel that reversed him had on it two Obama appointees and one Clinton appointee. The District Court Judge who invalidated portions of the Wisconsin law was nominated by President Obama. The panel that stayed his decision was composed of Republican appointees. I don’t mean to suggest that judges nominated by Democratic Presidents tend to be hacks for Democrats. They aren’t, but they tend to have views of constitutional claims different from judges nominated by Republican Presidents.

Fourth, invalidation of these voter-suppression initiatives - if sustained - makes it more likely that North Carolina and Wisconsin will end up in the Democratic column in November. Wisconsin has been Democratic in the last two presidential elections and NC gave Obama a majority in 2008. Of course, there will be appeals that will include demands for these courts to stay their injunctions of these laws.

Fifth, some Republicans still have not figured out how to deform state election laws without leaving a trail of slime that enables courts to find their legally impermissible purposes. Republicans are still ham-fisted and obvious about their partisanship or bias - either on the record or when they think they’re off it. And they compound their political and legal problem because they can’t come up with a factually grounded lawful basis for provisions they install to reduce the turnout of Democratic voters, including urban voters, poorer and minority voters, and younger voters. In North Carolina, for example, the legislature asked for and received data on African-American voting behavior and then acted what the court called “almost surgical precision” to restrict their voting opportunities.

Republicans have shown themselves to be very good over the years at broad-gauged message-management via bought and earned media, getting out their vote in off-year elections, taking over state governments, redistricting for partisan advantage, and obstructing and deterring Democratic voting. Yet, they haven’t figured out how to avoid leaving their DNA all over their voter-suppression crime scenes.

And, finally, here’s a note to everyone now planning not to vote in November for Hillary because (1) the guy we voted for (Bernie) didn't win, or (2) because there's no difference between the Rs and Ds, or (3) we need a revolution (violent or nonviolent), or (4) other or (5) all or any combination of the above: if you still intend to sit out anyway after reading this, please take a moment to think of everyone in the U.S. (and elsewhere) who longs to vote and cannot.

Yes, it's a cheap emotional ploy, and not even a very good one, but it's all I have. Best wishes to all of us.

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