Americans who watched with concern as state governments hurried to implement voting restrictions in the aftermath of the Supreme Court’s 2013 Shelby decision should be heartened by the recent spate of rulings blocking such measures. In the last few weeks courts have sensibly declared the laws in six states overly burdensome, finding no merit in claims the restrictions were needed to combat voter ID fraud—a phantom problem, as is widely recognized.
Significantly, courts explicitly noted that the measures were in fact aimed at disenfranchising specific blocks of voters. In North Carolina, it was African Americans, whom the 4th Circuit U.S. Court of Appeals said were targeted “with almost surgical precision.” In North Dakota, it was Native Americans. In Texas, it was African Americans and Latinos. In Wisconsin, it was African Americans in Milwaukee. It is not lost on anyone that these groups and others adversely affected, including college students, tend to vote Democratic, and that the measures were enacted by Republican legislatures with dispatch sufficient to take effect in time for the 2016 presidential election. This obviously goes beyond partisan gamesmanship, however, and even if the clearly discriminatory intent was not explicitly “racist,” a technicality some insist on pointing out, that any legislative body would strip certain groups of citizens of their constitutionally protected right to vote is a threat to the entire democratic system. Commonweal has said as much before, most recently in this May editorial.
Such schemes vindicate the concern of Justice Ruth Bader Ginsburg in her strong dissent on Shelby, in which she said that dismantling the preclearance provision of the Voting Rights Act “when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” It must again be remarked upon just how quickly these states and others moved upon the Shelby ruling to impose voting restrictions, this in spite of consistent bipartisan reauthorization of the complete provisions of the VRA since its 1965 enactment—most recently in 2006, when reauthorization was approved 390-33 in the House and 98-0 in the Senate and signed by President George W. Bush.
But while the recent rulings come as good news, restrictive measures remain on the books in other states.
And North Carolina has wasted no time in filing a motion for a stay of the Court of Appeals ruling, pleading that the decision imposes a logistical burden ahead of the November elections—and in the process previewing its line of argument in a planned petition to the U.S. Supreme Court: that the ruling “presents serious federalism concerns.” Donald Trump, meanwhile, is making familiarly fallacious assertions, repeating that voting fraud is rampant while dangerously stoking the anger of his supporters by suggesting a Clinton victory in the fall would be proof the election was rigged. (Never mind, as the New York Times and others have noted, that what the latest decisions have done is to un-rig the actual rigging undertaken post-Shelby.)
And other statements from Ginsburg—these by her own admission poorly considered and inappropriate—may yet come back to haunt her and those who believe in protecting the right to vote. Already there are predictable rumblings from right-leaning outlets that a Trump loss in November would warrant a Supreme Court challenge to the recent rulings blocking implementation of voter ID laws, a case from which they say Ginsburg would have to recuse herself because of the disparaging remarks she made about the candidate in July. Assuming the current composition of the high court, what might that augur for recent gains in the fight against disenfranchisement?