SCOTUS v. the Right to Vote: Three Strikes, but We’re Not Out

“Supreme Court Shreds Key Provision of the Voting Rights Act” was a typical news headline June 26, this one from the National Journal. According to Vermont’s Patrick Leahy, who chairs the Senate Judiciary Committee, the court’s decision in the case known as Shelby County, Alabama v. Holder, Attorney General, et al. “effectively struck down the core” of the law. [1] “Section 5 of the Voting Rights Act has protected minorities of all races from discriminatory practices in voting for nearly 50 years,” Leahy explained, “yet the Supreme Court’s decision to overturn the coverage formula effectively guts the ability of Section 5 to protect voters from discriminatory practices.” Rep. John Lewis said the court’s decision “put a dagger in the heart” of the Voting Rights Act (VRA). The 5-4 decision has been widely condemned, but undoing the damage anytime soon will be difficult.

This ruling is the third time in the past five years that the Supreme Court has struck a blow against fair elections. The infamous 2010 ruling in Citizens United v. Federal Election Commission opened the door to vastly increased spending by special interests seeking to influence elections. In his dissent, Justice John Paul Stevens argued that the Citizens United decision “threatens to undermine the integrity of elected institutions across the Nation. … A democracy cannot function effectively when its constituent members believe laws are being bought and sold.”Maine Senator Olympia Snowe, one of the last “moderate Republicans,” commented that “today’s decision was a serious disservice to our country.” The 2012 election campaigns were subsequently polluted by an obscene and unprecedented $7-plus billion in spending by campaigns, party groups and PACs, super PACs and “outside groups.”

Even so, an earlier and less well-known Supreme Court decision competes with these two for the damage it has done to electoral democracy. The Court’s 2008 ruling in Crawford v. Marion County Election Board upheld a restrictive Indiana voter ID law. This cleared the way for a flood of state laws making it harder for many low-income and minority citizens to vote. Widely promoted by the American Legislative Exchange Council (ALEC), a right-wing think tank that produces “model” legislation for state legislatures, ID requirements and other restrictive voting laws plagued the 2012 elections in more than 30 states.

The current wave of photo-ID initiatives began in 2005 with Indiana requiring all voters casting a ballot in person to present a United States or Indiana photo ID. A Constitutional challenge to the law was rejected by a district court and, in a 2-1 decision, also rejected by the 7th Circuit Court of Appeals. The state claimed the law’s purpose was to prevent voter fraud, although it had not presented even one example of such fraud. The dissenting appeals court judge, on the other hand, called the law a thinly veiled attempt to disenfranchise low-income Democratic Party voters.

The Crawford case reached the U.S. Supreme Court in January 2008, and the eventual vote was 6-3 upholding the ID requirement. But even as the court upheld the law, it acknowledged that there was no record of any fraud in Indiana’s history that the ID requirement would have prevented. The few cases of documented fraud in the state had occurred with absentee ballots and would not have been affected by the new ID statute. Justice David Souter argued in dissent that Indiana needed to show the actual existence of fraud, as opposed to merely claiming that fraud was possible, before imposing [2] “an unreasonable and irrelevant burden on voters who are poor and old. In other words, “If it ain’t broke don’t fix it!” – especially good sense when the unneeded fix is expensive, burdensome and anti-democratic. Souter’s dissent goes to the heart of the issues at stake.

Justice John Paul Stevens, writing for the majority this time, argued that [3] “Indiana’s interest in protecting public confidence in elections, while closely related to its interest in preventing voter fraud, has independent significance, because such confidence encourages citizen participation in the democratic practice.” This is bizarre; Stevens seems to be claiming that adding a new obstacle to voting will increase the turnout! No facts before the court supported that speculation, and there is now some real evidence that it is false.

An opinion study reported in the Harvard Law Review in 2008 investigated the connections between belief in widespread fraud and voting behavior. It confirmed that belief in voter fraud is common: the study found 35 percent of Republicans and 15 percent of Democrats agreeing (incorrectly) that “voting more than once or voting if not a US citizen” was “very common.” However, that belief was roughly the same in districts that did or did not have strict ID requirements, and for people who did or did not intend to vote. The study concludes: [4] “The use of photo identification requirements bears little correlation to the public’s belief about the incidence of fraud. The possible relation of such beliefs to participation appears even more tenuous. … [We] conclude that … public perceptions do not provide a firm justification for voter identification laws.”

The HLR study points to a real problem: the common, but false, belief that voter fraud is widespread. The media are partly at fault for repeating alarmist claims rather than reporting that such fraud is extremely rare. The Crawford decision made the problem worse. Imposing unneeded voter ID laws reinforces baseless fears of large-scale fraud, fears often directed toward minorities or recent immigrants, as well as imposing what Justice Souter correctly called an “unreasonable and irrelevant burden” on many voters.

In the run-up to the 2012 elections, resistance to the disenfranchisement campaign took several forms. Court challenges to voter suppression measures, including the new ID laws, were partially successful. In some cases voters rejected such laws at the polls. In Minnesota, an ALEC-style voter ID law was defeated in November 2012 balloting. A vital element in several states was hard work by political campaigns and nonpartisan groups that helped people overcome the new obstacles and cast their ballots anyway.

Thanks to the Voting Rights Act, some proposed restrictions didn’t take effect in 2012. Texas, for example, enacted an especially cynical voter ID law in 2011 in which a concealed-handgun license was acceptable but a student ID issued by a Texas state college was not. Because Texas was covered by Section 5 of the VRA, the Justice Department was able to block the law after finding that the state’s own data indicated that it would have a disproportionate effect on Hispanic voters. As soon as the Shelby County decision was announced, however, Texas moved to reinstate the same discriminatory ID requirements. In the future it will be far harder to stop Texas and others from implementing such laws.

In 2012 both the floods of money and the voter suppression campaigns were less successful than their sponsors presumably had hoped. There is no doubt, however, that the attempts to distort and weaken democracy will continue. Countering Citizens United is essential to limit the flood of big-money propaganda. The voter-suppression tactics enabled by Crawford will return in force, especially in vulnerable areas no longer defended by the VRA because of the Shelby County decision. The Supreme Court has delivered three strikes, but the process of democratic elections must not be counted out. The fight for a fair voting system just became a lot harder but remains vital for real democracy to survive.

(About the authors: This article is partially based on Arlene Ash and John Lamperti, “Elections 2012: Suppressing Fraud or Suppressing the Vote?”, Statistics, Politics and Policy volume 3, published online 1/11/2013. See also Ash and Lamperti, “Two Steps Backward: Suppressing the Vote in 2012,” Truthout, October 17, 2012.)

1 Steve Benen in The Madow Blog, MSNBC, Jun 25, 2013.

2 Supreme Court of the United States, Crawford et al v. Marion County Election Board et al, opinions of Justice Stevens (for the majority, to uphold the Indiana law) and Justice Souter (dissenting)

3 Ibid.

4 Stephen Ansolabehare and Nathaniel Persily, “Vote Fraud in the Eye of the Beholder: The role of public opinion in the challenge to voter identification requirements,” Harvard Law Review 2008, pp. 1737 – 1773.