The last two weeks were an orgy of good news for voting rights advocates. It began with a federal court decision effectively restoring voting rights to Wisconsin voters disenfranchised by the state’s voter ID law. Then, the full United States Court of Appeals for the Fifth Circuit — one of the most conservative federal courts in the nation — struck down a similar law in Texas. Then another federal appeals court tore up several major provisions of North Carolina’s omnibus voter suppression law.
And then, to cap off two weeks of action on voting rights, another federal judge in Wisconsin halted a raft of voter suppression measures late in the day on Friday. “The Wisconsin experience demonstrates that a preoccupation with mostly phantom election fraud leads to real incidents of disenfranchisement, which undermine rather than enhance confidence in elections, particularly in minority communities,” Judge James Peterson scolded the state lawmakers behind these measures.
To be sure, some of these voting rights victories still stand on tenuous ground. The two Wisconsin decisions were handed down by trial judges, and they will appeal to the Seventh Circuit, a court where judges who have previously expressed sympathy with modern day voting rights lawsuits hold a bare majority. Because most federal appeals court cases are handled by randomly selected panels of three judges, and because the makeup of a three-judge panel can potentially impact the makeup of a larger panel of judges who could be called upon the hear the case in the future, the fate of these Wisconsin decisions is likely to rest on which judges ultimately are assigned to hear the appeals.
Nevertheless, the judicial landscape facing voting rights advocates is massively more favorable than the landscape they faced in the 2014 election, when conservatives still controlled a majority on the Supreme Court. If Justice Antonin Scalia were still alive today, North Carolina advocates in particular would be biting their nails fearing that their state’s anti-voter law would soon be reinstated. Without a conservative Supreme Court majority, by contrast, the appeals court’s decision striking much of the North Carolina law is all but certain to be the final word — at least until after the election.
Indeed, it’s striking just how much the legal basis for modern day voter suppression rests upon a bed of sand. Take Crawford v. Marion County Election Board, a 2008 decision turning away a challenge to Indiana’s voter ID law. Voter ID laws ostensibly prevent voter fraud at the polls, but numerous studies and investigations — including investigations led by elected officials who support voter ID — have shown that such fraud barely exists. Indeed, the most striking thing about Crawford is that the Court’s lead opinion is only able to cite a single instance of in-person voter fraud within the previous 140 years!
Nevertheless, that opinion also treated the arguments of voting rights advocates warning of disenfranchisement and the arguments of lawmakers complaining of a kind of fraud that basically does not exist as if they had equal weight. “On the basis of the evidence in the record,” the opinion claimed, “it is not possible to quantify either the magnitude of the burden on this narrow class of voters or the portion of the burden imposed on them that is fully justified.”
Whatever the wisdom of this decision at the time, two things are worth noting about it eight years later. The first is that retired Justice John Paul Stevens, the author of the lead opinion in Crawford, has since labeled that case a “fairly unfortunate decision.” Stevens says that he learned “a lot of things outside the record that made me very concerned about” voter ID, but that he felt that he “had a duty to confine myself to what the record did prove, and I thought it did not prove the plaintiffs’ case.”
As Stevens recounts the history of this case — or, at least, of his decision to vote against the plaintiffs in this case — Crawford is more a story about the plaintiffs’ failure to make the case against voter ID than it was a full-throated endorsement of a voter suppression law.
The second point that is worth noting about Crawford is that, however imperfect the record might have been in 2008, there is now no longer any reasonable doubt that voter ID laws exist to prevent certain people from voting and not to protect election integrity. As explained above, the kind of fraud these laws supposedly prevent is only slightly more common than unicorns. Meanwhile, research into the real impact of such laws shows that their primary effect is to prevent voters who tend to prefer Democrats to Republicans from casting a ballot. One study determined that “Democratic turnout drops by an estimated 8.8 percentage points in general elections when strict photo identification laws are in place,” compared to 3.6 percentage points for Republicans. Other, more conservative estimates still indicate that voter ID can add more than a full percentage point to the GOP’s margin over Democrats.
Even more significantly, given the current state of the law, voter ID laws disproportionately impact voters of color — much like other common tactics used by conservative lawmakers often target minority voters, including tactics such as cuts to early voting or efforts to make it harder to register to vote.
This disproportionate impact on voters of color matters because the Voting Rights Act, which was not at issue in Crawford, prohibits any “voting qualification or prerequisite to voting or standard, practice, or procedure . . . which results in a denial or abridgement of the right of any citizen . . . to vote on account of race or color.” So voting rights advocates do not need to overrule Crawford, an outcome that is unlikely at least as long as the Supreme Court is evenly divided between liberals and conservatives, in order to convince judges to strike down many modern voter suppression laws.
Of course, as the election approaches, there will undoubtedly still be some decisions that cut against voting rights in ways that are difficult to square with the law. The Sixth Circuit, for example, which oversees the crucial state of Ohio, is still dominated by conservatives (although, in fairness, existing precedent in the Sixth Circuit is fairly favorable to voting rights plaintiffs). So judicial enclaves still exist where judges who tend to be more skeptical of voting rights dominate.
But the overall landscape for voting rights is far more favorable than it has been for a very long time. Appeals court judges confronted with voter suppression laws can feel free to strike those laws down, knowing that their decision is unlikely to be questioned by a Supreme Court without a conservative majority.