by Daniel P. Tokaji
“[T]he political franchise of voting . . . . is regarded as a fundamental political right, because [it is] preservative of all rights….”
– Yick Wo v. Hopkins (1886)
For over 130 years, the U.S. Supreme Court has said that the right to vote fundamental. The idea is that voting for candidates who represent our views is the primary means through which we protect our interests, whatever they might be. While the Court has often repeated this constitutional principle, it hasn’t always honored it. In fact, at the very moment that the Court first declared the right to vote fundamental, African Americans were being systematically and brutally excluded from voting throughout the states of the former confederacy. As a result, all their other rights – including education, employment – were denied.
Contemporary threats to the right to vote are much less egregious than the racist exclusionary practices that predominated in the late 19th Century and persisted through most of the 20th Century, but today’s threats are nonetheless real. Recent events raise serious questions about the currently short-staffed Supreme Court’s capacity to protect the right to vote against 21st Century threats. The vacancy created by Justice Scalia’s death has now existed for over seven months and counting. The split arising from this vacancy compromises the Court’s ability serve as a bulwark against denial of the right to vote.
Recent developments in a voting rights case from two swing states, North Carolina and Ohio, are especially troubling. North Carolina enacted an omnibus voting bill shortly after the Supreme Court’s decision in Shelby County v. Holder (2013), which freed it from the strictures of preclearance under Section 5 of the Voting Rights Act. Although Section 5 wasn’t used to stop vote denial as often as is commonly supposed (p. 79), there’s no doubt that Shelby County led directly to North Carolina’s 2013 voting restrictions.
North Carolina’s law was especially sweeping, imposing voter ID, limiting early voting, eliminating same-day registration, restricting the counting of provisional ballots, and abolishing pre-registration for 16- and 17-year olds. Despite substantial evidence that African Americans would be especially hard hit by North Carolina’s new restrictions, the district court in NC NAACP v. McCrory denied relief. Its very lengthy opinion missed the forest through the trees, examining each voting restriction separately, while downplaying their cumulative effect on black voters as well as evidence of the legislature’s racially discriminatory intent.
The Fourth Circuit Court of Appeals reversed the district court, finding that North Carolina’s voting restrictions “targeted African Americans with almost surgical precision.” The court cited evidence that North Carolina’s Republican leadership specifically asked for racial data on the usage of particular voting practices, then adopted a law restricting those means used predominantly by African Americans. Based on this and other evidence, the Fourth Circuit concluded that this law was motivated by discriminatory intent.
While racially discriminatory intent is hard to prove, the Fourth Circuit’s conclusion that North Carolina’s legislature had acted with such intent was amply justified by the evidence. To be sure, the ultimate reason for North Carolina’s Republican legislature adopting this law was partisan. As in other states, North Carolina’s African Americans vote overwhelmingly Democratic, providing a strong motivation for the Republican majority to make it harder for them to vote. The Fourth Circuit correctly reasoned that racial and partisan motivations aren’t mutually exclusive – to the contrary, they are mutually reinforcing. That’s especially true in North Carolina, where being African American is a better predictor of voting Democratic than being registered as a Democrat.
In these circumstances, it should come as no surprise that the Supreme Court denied North Carolina’s motion to stay the Fourth Circuit order, especially given the state’s tardy filing of its motion. What was surprising is that there was a 4-4 tie, with the four conservative justices voting to reinstate the restrictions (Chief Justice Roberts, Justice Kennedy, Thomas, and Alito). Those justices dissented from the denial of a stay, even though it’s hard to imagine a broader and deeper package of voting restrictions or, at least in 2016, one with a more evident racial discriminatory purpose than that of North Carolina.
Given the split in the North Carolina case, there was no real hope that the Court would intervene in Ohio Democratic Party v. Husted. That case challenged Ohio’s elimination of “Golden Week,” the five-day period for same-day registration and early voting. African Americans disproportionately relied on this window, leading the federal district court to conclude that it violated Section 2 of the Voting Rights Act. Although this restriction was less onerous than those adopted in North Carolina, Ohio’s anti-fraud justification was especially flimsy. It defied both credulity and the evidence to argue, as did Ohio, that there was a significant risk of fraud with ballots cast thirty days before election day.
Ohio’s pretextual justification suggested that, as in North Carolina, the Republican-dominated legislature’s real goal was to gain partisan advantage by restricting a means of voting disproportionately used by African Americans. The highly respected district judge ruled against Ohio, doing exactly what the law requires by carefully sifting through the evidence on both sides. The fact that the district judge was appointed by George W. Bush and formerly served as Chief Counsel to Republican Governor George Voinivich adds credibility to his studied conclusion that Ohio’s voting restrictions violated both the Fourteenth Amendment and the Voting Rights Act.
The Sixth Circuit nevertheless reversed, beginning its opinion with an ideological statement of opposition to judicial intervention in voting disputes: “This case presents yet another appeal …asking the federal courts to become entangled, as overseers and micromanagers, in the minutiae of state election processes.” The court’s reasoning on the Voting Rights Act claim is even more troubling. Remarkably, it found that plaintiffs had failed to prove the requisite disparate impact on African Americans, even though they were heavy users of the voting opportunity that the state eliminated. Though the Sixth Circuit opinion isn’t a model of clarity, it seems to suggest that a racial minority group is foreclosed from prevailing if its overall turnout is equal to that of the majority group, emphasizing that “the statistical evidence shows that African Americans’ participation was at least equal to that of white voters.” This suggests that a racial group should always lose if their overall turnout equals that of the majority. The proper threshold question is whether the challenged law eliminates opportunities that African Americans predominantly use, as I’ve explained in this article (pp. 473-80).
Despite the problems with the Sixth Circuit’s reasoning, there was practically no hope of the Supreme Court staying its order. There was no reported dissent from the Court’s denial of a stay, but that says little or nothing about what would have happened if the Court had a full complement of justices. The same is true of the Sixth Circuit’s most recent decision in NEOCH v. Husted, mostly rejecting a challenge to procedures used for provisional voting, absentee voting, and voter assistance. Although there are similar problems with the Sixth Circuit’s analysis of the Voting Rights Act claim in that case, seeking Supreme Court review would be similarly futile.
These cases create serious doubts about whether the Supreme Court, as presently constituted, can be trusted to protect the fundamental right to vote. As a practical matter, it means that federal appellate courts now enjoy a great deal of power, as Rick Hasen has noted. Divisive voting issues are very likely to split the Court in half, meaning that the lower court’s ruling will be affirmed. And this is to say nothing of looming controversies over partisan gerrymandering and campaign finance, also likely to divide the current Court in half.
Sadly, it is a virtual certainty that the Court will remain understaffed for the remainder of the current election season, with several voting cases still pending and more likely to come up. As long as this seat remains open, there will be a 4-4 split on several important issues, but none are more important. The fundamental right to vote, and therefore all of our rights, are at stake.