Republican judges put their thumb on the scale in favor of the GOP war on voting

thumbscaleYour worst fears about the GOP war on voting are being realized: Republican judges in the appellate courts are putting their thumb on the scale in favor of restrictions on the franchise to vote of U.S. Citizens.

Last week, Judge Easterbrook writing for the 7th Circuit Court of Appeals put his thumb on the scale of the Wisconsin voter ID case, which currently has a motion to enjoin the state from imposing new voter ID rules in this election before the U.S. Supreme Court. Read the 32 page opinion Here (.pdf).

Keep in mind that early voting has already begun in Wisconsin, and this ruling affects ballots already cast. Electoral Chaos in Wisconsin. Voters who cast an early ballot without proof of ID are being tracked down by the state and asked to submit a photocopy of their ID, or their early ballot will not be counted.

Rich Hasen at Election Law Blog has gone ballistic over this opinion, collecting numerous articles describing how the 7th Circuit violated the rule from the Supreme Court’s Purcell v. Gonzalez case for courts not to change election rules just before the election, or in this case, an election already in progress. (If you recognize that name, yes it is Helen Purcell, Maricopa County Recorder):

The U.S. Supreme Court has not yet ruled on the Wisconsin case, but on Wednesday night the Court did rule on the restrictive voting law case from North Carolina, the state with the “worst voter suppression law” in the country.

The Court ruled in favor of North Carolina voter suppression, with Justices Ruth Bader Ginsberg and Sonia Sotomayor moved to file a dissent to the order. Lyle Denniston at SCOTUSblog reports, Court allows North Carolina voting limits:

The Supreme Court, with two Justices noting dissents, on Wednesday afternoon allowed North Carolina to bar voters from registering and casting their ballots on the same day, and to refuse to count votes that were cast in the wrong polling places [sometimes called the “right church, wrong pew” rule.] Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.  The majority did not explain its action.

The order gives the state time to file an appeal from lower-court rulings striking down those two provisions, which were part of a larger, sweeping change in voting rights in the state.  If the Court grants review of the state’s appeal, the postponement will remain in effect until there is a decision.

Justice Ginsburg, writing for herself and Justice Sotomayor, argued that the two restrictions at issue as well as others in the broader reach of the new law probably would have been found illegal, if the Voting Rights Act of 1965 remained in full effect and North Carolina had had to ask permission from the federal government to make those changes.  The Court last year limited the 1965 Act in a way that the dissenters said “effectively nullified” the law’s pre-clearance requirement.

The U.S. Court of Appeals for the Fourth Circuit found that the two provisions permitted by Wednesday’s Supreme Court order would risk a significant reduction in voting opportunities for black voters in North Carolina, in violation of a part of the Voting Rights Act still intact. [A Section 2 claim.]

Other provisions in the new state law, not at issue in the state’s plea to the Supreme Court, required identification to vote, cut short early voting by a week, barred voting on the final Saturday before election day, ended pre-registration of sixteen- and seventeen-year-olds in high schools, and authorized any registered voter to challenge ballots cast early or on election day.

The Supreme Court’s action marked the second time it had been drawn into the legal controversy, now reaching across the country, over new cutbacks on voting rights.   On September 29, the Court split five to four in permitting Ohio to cut back sharply on early voting rights in advance of election day.

I would not try to read too much into this order. I do not believe it is an indicator of how the Court will rule on the merits of the Section 2 claim under the Voting Rights Act. But many Court observers believe that the “Felonious Five” who gutted Section 4 of the landmark Voting Rights Act last year, rendering Section 5 of the Act moot, are motivated to strike down Section 2 of the VRA as well. Only time will tell, but the actions of the Court are ominous.

As Rick Hasen asks today: “How will it look if the five conservative Justices stand on the side of Republicans in the Ohio, North Carolina, and Wisconsin cases? Very bad.”

This is why elections matter: Senators forward the names of nominees for the federal bench from their states to the President, who makes the nomination to the full Senate. Who you elect as U.S. Senator and President is a very big deal. Those states with Senate races this year should keep this in mind.

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