How the Supreme Court Made a Mess of Our Voting System

Alexis de Tocqueville famously observed in 1835, "Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." That certainly describes the grand struggle over voting rights now unfolding in courtrooms across the country. And when it comes to who can vote and when, a clear message is hard to discern. In recent days, rulings, appeals and motions have pinballed around the system, with the U.S. Supreme Court answering emergency pleas, allowing some changes to take effect and temporarily blocking others, while key appeals head their way. The latest lurch: In a decision emailed out at 5 a.m. Saturday morning, the justices let Texas implement its controversial voter ID law, the nation's strictest, just two days before early voting begins in the state.

Amid the confusion, an important new element has emerged. The breakthrough? Facts. Two powerful judicial opinions--one from a Texas trial judge, another from an esteemed appeals court jurist--and a landmark government study have shed new light on the costs and consequences of restrictive voting laws. They answer some key questions: Are these laws malevolent? (In Texas, at least, yes.) Do they provide a benefit that outweighs their cost? (No.) Do they suppress the vote? (Alarmingly, it seems, yes.) And can we prevent fraud without disenfranchising Americans? (Yes, absolutely.)

This year, 21 states will hold elections under rules enacted since 2011, seven of them for the first time. With control of the Senate and much else teetering on microscopically tight margins, laws that block eligible voters could have major effects.

In a zone foggy with legal rhetoric, these three documents will--and should--live on beyond the 2014 election cycle. They might even help shape a new legal regime to protect voters while protecting against fraud. They're worth a close read.

Here's some background: Over the past four years--and for the first time since the Jim Crow era--nearly two dozen states have passed new laws making it harder to vote. The laws range from cutbacks on early voting (Ohio and North Carolina), to a repeal of Election Day registration (Maine), to harsh rules requiring specific types of government identification to vote (states from Texas to Tennessee). Florida even cracked down on nonpartisan voter registration drives, forcing the League of Women Voters--hardly a Trotskyist cell!--to shut down its operations.

In 2011, my organization, the Brennan Center for Justice, calculated that the first wave of these new laws, if implemented, could have made it far harder for five million citizens to vote. At first, the judiciary seemed to recognize that risk. In the run up to the 2012 election, courts around the country routinely blocked or postponed the new voting regulations. On Election Day, few of those disenfranchising laws were in effect.

Then last year, the U.S. Supreme Court stepped in. In Shelby County v. Holder, it gutted the landmark 1965 Voting Rights Act by neutering its requirement, under Section 5 of the law, that states with a history of discrimination clear changes to voting regulations with a court or the Justice Department. The court was bitterly divided, five to four. During oral argument in February 2013, Justice Antonin Scalia called the Voting Rights Act little more than a "racial entitlement." "Even the name of it is wonderful, the Voting Rights Act," he added. "Who's going to vote against that?" Ruth Bader Ginsburg, writing in heated dissent, warned that gutting the law "is like throwing away your umbrella in a rainstorm because you are not getting wet."

Predictably, many Southern states once covered by the Voting Rights Act moved swiftly to implement new, stricter voting rules. In other states, laws that had been postponed in the run up to 2012 began to go into effect.

The result has been a paper storm of lawsuits, argued in courtrooms across the country, as voting rights groups and the Justice Department challenge these new restrictions. Much hangs in the balance: This year, 21 states will hold elections under rules enacted since 2011, seven of them for the first time. With control of the Senate and much else teetering on microscopically tight margins, laws that block eligible voters could have major effects.

That's why these new three new treatises are so important.

The first came from a courtroom in Corpus Christi, Texas. Just hours after the Supreme Court issued Shelby County in 2013, Texas implemented its new voter identification law. The statute was nakedly partisan and almost comically precise in its construction: Texans could show a concealed carry weapons permit, but not a University of Texas student ID. Republican Attorney General Greg Abbott rushed to put the law in place. Abbott, of course, is now the candidate for governor who might benefit from the law's conservative tilt.

The U.S. Justice Department promptly sued Texas, as did voting rights groups. (The Brennan Center, together with the Lawyers Committee for Civil Rights and the Dechert law firm, represents the Texas NAACP and the state Mexican American Legislative Caucus in these cases.) The suits relied on Section 2 of the Voting Rights Act, which is still on the books. This section of the act prohibits voting practices that discriminate against minorities. But plaintiffs usually cannot obtain relief until after the offending law is already in effect, and shifts the burden of proof of discrimination onto the law's challengers, a much tougher standard. Previously Section 2 had rarely been used to address voting law changes; it wasn't necessary, given the pre-clearance option Now it was one of the few vehicles for redress left.

"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."
--Justice Ruth Bader Ginsburg

The clash produced a compelling nine-day trial. The lead witness was an elderly woman, Sammie Louise Bates, who testified by video. Bates grew up in Mississippi in the 1940s, and remembered smoldering as she counted out money so her grandmother could pay the state's notorious poll tax. Bates has voted regularly since she was 21. Today, she lives on Social Security and little else. After trying unsuccessfully to cast a ballot that would count in 2013, she learned she would have to pay $42 to procure birth records from Mississippi ever to vote again. Sitting at a burnished conference table in a law firm office, Bates was quizzed about why she had not quickly procured the paperwork. "I had to put $42 where it was doing the most good. It was feeding my family," she explained. She gazed evenly at her questioner. "We couldn't eat the birth certificate."

Last week, the judge in the case, Nelva Gonzales Ramos, issued her decision. It stretched to 147 fact-crammed pages. She found that 600,000 Texas voters lacked an appropriate ID. She found that the legislature had rammed the proposal through, turning aside any efforts to make the law less burdensome for minority and poor voters. She noted that the state had provided only 279 substitute "free" voter ID cards. And she found only two cases in the previous decade of in-person voter impersonation--the only kind of fraud that a harsh ID rule would block.

Alarmingly, the law will be enforced anyway. In Saturday's pre-dawn 6-3 ruling, the Supreme Court allowed the Texas law to stand for now. The justices offered no explanation. In recent weeks the court blocked a new voter law in Wisconsin, but allowed restrictions in North Carolina and Ohio to proceed. A common thread seems reluctance to change rules close to Election Day. Sensible enough, but as Justice Ginsburg (together with Sonia Sotomayor and Elena Kagan) vigorously noted in their dissent, the Texas case was distinct, the harm more clearly delineated by a full trial: "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 federal appeals court will eventually consider the state's appeal of the Ramos verdict, but only after the election. In any case, by painstakingly documenting the motives and impact of the law, Judge Ramos' ruling will likely help shift the debate nationwide.

The second "truth bomb" was equally powerful, and lobbed from a more surprising direction. The backstory: In 2011, Wisconsin Republican legislators rushed through a new voting law. The ACLU sued. A trial judge blocked the law, finding it violated Section 2 of the Voting Rights Act (and the Constitution, too). An appeals court overturned that ruling. Eventually, on October 9, the U.S. Supreme Court froze the law, because it was too close to Election Day to be implemented.

Amid the legal flurry, Chicago appeals Judge Richard Posner weighed in. He wanted the trial court's ruling to be heard by a wider group of appeals judges, not just the panel of three that had already ruled. With five judges for rehearing the case with a larger panel, and five against, the tie went to the state of Wisconsin. Posner wrote a 43-page dissent. Posner is no anonymous scribbler. He is the most cited legal scholar of the 20th century, according to the Journal of Legal Studies. He is also a leading conservative. And he wrote the opinionupholding Indiana's voter ID law--a ruling affirmed by the Supreme Court in Crawford v. Marion County in 2008. At the time, before Indiana's milder version of voter ID had gone into effect, Posner found there were inadequate facts to justify overturning the legislature. Like other judges, too, he treated the law as a low-stakes technicality. In Reflections on Judging, published last year, he already hinted at a change in heart, calling the new laws "voter suppression."

Posner's Wisconsin dissent is a masterpiece. With withering precision, he noted little evidence of in-person voter impersonation in the state. "Some of the 'evidence' of voter-impersonation fraud is downright goofy, if not paranoid, such as the nonexistent buses that according to the 'True the Vote' movement transport foreigners and reservation Indians to polling places," Posner wrote. In Wisconsin (as elsewhere), it costs money to obtain the underlying documents needed to procure the voter ID card. Posner is known for using cost-benefit analysis in legal analysis: Here he finds the burdens of the new law vastly outweigh possible gains. "As there is no evidence that voter-impersonation fraud is a problem, how can the fact that a legislature says it's a problem turn it into one? If the Wisconsin legislature says witches are a problem, shall Wisconsin courts be permitted to conduct witch trials?"

Finally, he takes after the blase opinion written by other judges who would uphold Wisconsin's law.

"The authors' overall assessment is that 'voter ID laws don't disenfranchise minorities or reduce minority voting, and in many instances enhance it' [emphasis added]," Posner wrote. "In other words, the authors believe that the net effect of these laws is to increase minority voting. Yet if that is true, the opposition to these laws by liberal groups is senseless. If photo ID laws increase minority voting, liberals should rejoice in the laws and conservatives deplore them. Yet it is conservatives who support them and liberals who oppose them."

Posner's blast has limited immediate legal import. It was, after all, a dissent, and from a highly technical decision on a request for a new hearing, at that. The U.S. Supreme Court already has moved beyond it. But his voice carries undeniable power. Perhaps it can help.

"As there is no evidence that voter-impersonation fraud is a problem, how can the fact that a legislature says it's a problem turn it into one? If the Wisconsin legislature says witches are a problem, shall Wisconsin courts be permitted to conduct witch trials?"
--Judge Richard Posner

Does all this legal huffing and puffing matter? A third reality check, this one a careful study, suggests the stakes are high.

The nonpartisan Government Accounting Office (GAO) looked at the impact of the new strict voter ID laws. This is more novel than it might seem. Yes, a surprising number of potential voters lack needed paperwork. The Brennan Center, for example, found that 11 percent of eligible voters in the United States do not have a driver's license or similar government document, a finding confirmed by numerous other studies (and cited by Judge Posner). These laws could make it harder for many to cast their ballots. But do they really suppress the vote? That question has been harder to answer. Many factors affect turnout, and only a few states have implemented the strictest rules. Maybe those who lack identification wouldn't vote anyway.

The GAO took a hard look. Its findings about depressed turnout are, well, depressing. The authors looked at Tennessee and Kansas, compared them to similar states with different laws and assessed a dizzying number of complicating factors. The new laws do, in fact, dampen voting--but not for everyone. Turnout dropped 1.9 percent in Kansas, and 2.2 percent in Tennessee, the report found, and the declines "were attributable to changes in those two states' voter ID requirements." Turnout fell most among African-American voters, young people and new voters. The Washington Post calculated that's 122,000 fewer voters. Finally, a government program that works as intended!

To be clear: These reports do not suggest that there should be no requirement for identification of voters. Judge Ramos carefully compares Texas to other, less burdensome systems. And there are risks to election integrity. Chief among them is the ramshackle paper-based voter-registration system, which fails to include tens of millions of eligible voters while simultaneously including double listings and myriad other errors. Good-faith efforts to modernize elections could address fraud concerns without reducing rights and slicing off sectors of the electorate. The bipartisan Presidential Commission on Election Administration, chaired by Romney lawyer Ben Ginsberg and Obama counsel Bob Bauer, shows how to find common ground. (Though they carefully sidestepped the gnarly topic of voter ID, many of their other recommendations would drain the issue of partisan intensity.)

Those of us who focus on protecting the right to vote must recognize that protecting election integrity is critical to the health of American democracy. Voter identification, as a concept, remains widely popular. That's understandable. I am actually for voter ID. I'm just against requiring ID that lots of Americans do not have.

Will these three eye-opening commentaries end the debate over voting? Of course not. Americans have struggled over who could cast ballots since our earliest days, when only white men with property could vote. And despite de Tocqueville's observation, the ultimate decision may not come in the courts. We don't know what the Supreme Court will say on any of these matters, when the cases reach the court for full, rather than emergency, consideration. Ultimately, the fight for voting rights will be won in the court of public opinion. And lucky for those of us who value the right to vote as much as the integrity of the electoral system, that's where these powerful new arguments may ring loudest.