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Why red state voting laws keep getting struck down

A shift in thought

A Michigan law banning 'straight-ticket voting' is the latest example, with the Supreme Court allowing it to be struck down Friday. Concerns over minority voting rights – and big data to back them – are having an effect.

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    A voter casts his ballot at the Berston Field House polling location in Flint, Mich., on Aug. 2. The Supreme Court allowed straight-ticket voting in Michigan to continue Friday.
    Tegan Johnston/The Flint Journal-MLive.com/AP/File
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The United States Supreme Court on Friday provided further evidence that – for now – concerns about minority communities voting rights are making it harder for Republican-led states to tinker with election laws.

The court declined to take up a case involving a new Michigan law that bans “straight-ticket voting” – the practice of allowing voters to vote for all the candidates of one party with a single selection. Michigan has allowed straight-ticket voting since 1891.

A federal court had stuck down the law, saying it would disproportionately affect black communities, where voting lines are already long and straight-ticket voting is common and saves time. The Supreme Court’s decision not to take action Friday means the lower court ruling stands.

This follows other decisions this year by the US Fifth and Fourth Circuit Courts of Appeal overturning voter identification laws in Texas and North Carolina, respectively. Both cited the potential negative effect on minority voters.

Partisan legislative efforts to manipulate the vote have existed since the nation began – more often that not involving subtle, granular tweaks to voting procedure that could have small, but significant, effects on voter participation.

What appears to be different now is that lower courts are paying closer attention to legislators’ intent and the impact behind changing election laws.

“What [courts] are trying to do is ask whether the state is changing things to make it harder for a population to vote relative to some baseline of difficulty to vote,” says Steven Schwinn, a professor at the John Marshall School of Law in Chicago.

To some, this represents progress. To others, it is evidence of the influence of President Obama’s judicial appointees.

For now, however, any movement within the lower courts is unlikely to be given a stamp of approval from the Supreme Court. Shorthanded and ideologically split, the high court is merely putting out fires as the election approaches.

But the lower courts’ rulings show some trends.

Big data comes to court

For one, challenges have turned more to hard data and expert testimony to sway judges of the laws’ discriminatory effect – and that appears to be working.

“That’s all about the proof and evidence that lawyers are able to put into the record,” says Professor Schwinn. “You have to look at who votes, how, and how it impacts certain voters.”

Moreover, race and ethnicity track partisan voting tendencies so closely that laws that potentially boost Republicans almost inevitably affect minorities adversely.

Some 71 percent of Hispanics, 73 percents of Asians, and 93 percent of African-Americans voted for Mr. Obama in 2012, according to the Roper Center. Four in 10 voters in the Democratic primaries were nonwhite, while only 7 percent of blacks and 12 percent of Hispanics identified as Republicans in a July poll from The Wall Street Journal.

Most attempts to manipulate voting access are “likely to impact the [minority] population disproportionately,” adds Schwinn, “and that’s the illegal part.”

The Supreme Court rejected the Michigan case without comment, but Federal District Court Judge Judge Gershwin Drain said in July that the law placed “a disproportionate burden on African-Americans’ right to vote.”

The data showed that “there are ‘extremely high’ correlations between the size of the African-American voting population within a district and the use of straight-party voting in that district,” he added.

The circuit court decisions overturning voter identification laws in Texas and North Carolina earlier this year made similar arguments.

“The district court found that multiple plaintiffs were turned away when they attempted to vote,” the Fifth Circuit wrote in its opinion.

The North Carolina law, meanwhile, “targeted black voters with almost surgical precision,” the Fourth Circuit wrote.

Conservatives argue that the laws are necessary to prevent voter fraud, and they say the federal courts have shifted leftward under Obama. Obama has appointed six of the 15 judges on the Fourth Circuit bench, which was once considered one of the more conservative appeals courts in the country.

After the Supreme Court refused, in a 4-to-4 vote, North Carolina’s appeal to freeze the Fourth Circuit’s ruling pending an appeal, Gov. Pat McCrory (R) blamed the court’s “four liberal justices [who] blocked North Carolina protections afforded by our sensible voter laws,” according to the Post.

More data, better rulings?

Yet not every lower court has ruled against conservatives.

The Ohio Democratic Party, for example, has asked the justices to suspend a US Sixth Circuit Court of Appeals ruling upholding a state law that would trim the number of “golden week” early voting days – in which a person could both register to vote and cast a ballot on the same day from – from 35 days to 29. The Democrats argue that black voters make disproportionate use of the golden week and that shortening the period would amount to racial discrimination.

In upholding the law, the Sixth Circuit noted that even with the reduction, Ohio would have one of the longest early voting spans in the country, the Economist reported. Thirteen states, including New York and Pennsylvania, don’t have early voting at all.

The Supreme Court could make a ruling on the appeal soon. Elena Kagan, the justice responsible for the Sixth Circuit, has asked the state to respond to the appeal by Thursday.

While it appears that the debate around these laws has become increasingly science-based, it is still unclear if that is resulting in more informed judicial decisions.

The election laws are “sometimes enacted with the hope of suppressing democratic turnout, but it’s not always clear they have those effects,” says Rick Hasen, an election law expert at the University of California, Irvine. “Both sides can cherry pick studies and data to make their points.”

And while the Supreme Court delivered a degree of clarity last week with its North Carolina decision, those expecting similar clarity on other election laws are likely to be disappointed.

“Cases that would ordinarily be promising for Supreme Court review might not be,” says Professor Hasen, given the 4-to-4 split among the justices.

“When courts decide emergency cases, it doesn’t really set a lot of precedent,” he adds. “So it’s going to take a full hearing further down the line to provide more clarity on the rules.”

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