Voting Rights on the March

Lower courts are emboldened by a 4–4 split and the Supreme Court’s abortion ruling to strike down specious voting laws.

The 4–4 ideological split at the Supreme Court since Justice Antonin Scalia’s death incentivizes pro-voter decisions, at least among circuit courts.

Nicholas Kamm/AFP/Getty Images

If there is a lesson in July’s voting rights revolution—six rulings in two weeks that invalidated key provisions of five states’ restrictive voting laws—it is this: The judges are fed up.

They are fed up with being treated like dolts by Republican legislators who lie through their teeth about the intent of draconian voting restrictions. They are fed up with brazen efforts to diminish minorities’ voting power by targeting and eliminating their preferred voting methods. And most of all, they are fed up with the pretext: The shameless insistence by GOP legislators that these explicitly partisan, outwardly race-based voting laws serve any purpose other than helping Republican legislators entrench their own political power.

For years, judges across the country have gritted their teeth and bought into these flagrant fictions. The explosion of rulings vindicating voting rights last month, however, sent a stark message to legislators in Wisconsin, Texas, North Carolina, Michigan, Kansas, and beyond: We are done pretending to believe your bunk. And while the judges clearly took their cue from the Supreme Court, the decision that appears to have freed them from accepting legislative lies doesn’t deal with voting rights at all. It is, rather, Whole Woman’s Health v. Hellerstedt—an abortion case that is really also about the judiciary’s responsibility to reject legislators’ fraudulent pretenses when a state curbs constitutional rights.

Whole Woman’s Health involved two abortion restrictions passed by the Texas Legislature under the justification of protecting women’s health. At trial, Texas could present no evidence that its new regulations made abortion safer, as its boosters claimed; instead, the record suggested that the law’s true purpose was to shut down as many clinics as possible. But Texas argued that none of this mattered: Courts, the state insisted, must simply accept the validity of a legislature’s factual assertions; they have no business examining the record for evidence that the legislature is telling the truth.

The Supreme Court kicked this argument to the curb. When a state infringes upon a constitutional right, the court declared, the federal judiciary isn’t obliged to swallow a mendacious legislature’s transparent codswallop. Texas’ law marked an obvious attempt to curb women’s reproductive liberty under the painfully flimsy pretext of protecting their health. Federal courts, Justice Stephen Breyer wrote for the majority, should interrogate the true intentions and effects of laws that seem suspiciously eager to trammel constitutional rights.

Whole Woman’s Health first cropped up in U.S. District Judge Lynn Adelman’s decision blocking Wisconsin from denying the right to vote to residents who can’t produce the proper ID. As soon as Republicans took over every branch of the Wisconsin state government, they pushed through an omnibus voting law that restricted voting rights in almost every way imaginable. The state argued that the voter ID portion of the bill was necessary to prevent voter fraud. It further insisted that anybody who wanted an ID could get one for free at a Wisconsin DMV within six days.

That, Adelman found, is utter twaddle. First of all, Wisconsin could demonstrate virtually no evidence of voter fraud. It certainly couldn’t find enough evidence to justify the outrageously burdensome process the state created for obtaining an ID, a process that effectively disenfranchised thousands of (mostly minority) voters. And its assertion that any resident could get an ID within six days was proved to be a pure falsehood.

“The Supreme Court recently reiterated that where a state law burdens a constitutional right, the state must produce evidence supporting its claim that the burden is necessary to further the state’s claimed interests,” Adelman concluded, citing Whole Woman’s Health.

Just a week later, another U.S. District Judge in Wisconsin, James D. Peterson, went farther than Adelman, calling out the Legislature for its “preoccupation with mostly phantom election fraud.” This obsession, Peterson wrote, “leads to real incidents of disenfranchisement, which undermine rather than enhance confidence in elections, particularly in minority communities.” Peterson slammed Wisconsin’s ID-acquisition process as “a disaster” and a “wretched failure” that “has disenfranchised a number of citizens who are unquestionably qualified to vote, and these disenfranchised citizens are overwhelmingly African American and Latino.” He also struck down portions of the Wisconsin law that slashed early voting and absentee voting as violations of the First, 14th, and 15th amendments, as well as the Voting Rights Act. Most importantly of all, Peterson squarely acknowledged that Republicans had passed the law “for partisan purposes, not out of any legitimate concern for the integrity of Wisconsin elections.”

If Peterson scolded the Wisconsin Legislature for its race-based voting restrictions, the United States Court of Appeals for the 4th Circuit flayed, filleted, and roasted the North Carolina Legislature for its egregiously racist voting law. The Republican-dominated Legislature passed an omnibus voting measure immediately after the Supreme Court freed the state from “preclearance,” allowing it to modify voting laws without federal approval. As the 4th Circuit explained, Republican legislators then promptly “requested data on the use, by race, of a number of voting practices.” Then, using this “racial breakdown” of voting practices, the state proceeded to restrict every voting method preferred by minorities.

Like Wisconsin, North Carolina insisted that its regulations were necessary to prevent voter fraud. Not so, the 4th Circuit held: These “seemingly irrational restrictions,” the court explained, appear to be “unrelated to the goal of combating fraud.” The court excoriated North Carolina’s justifications for the law as “post hoc rationalizations” and “solutions in search of a problem.” Over and over again, the court found that the state’s explanations for its mass disenfranchisement of black voters were irrational, illogical, dishonest, and pathetic.

The 5th Circuit was similarly skeptical of the intent behind Texas’ severe voter ID law, which infamously deemed concealed handgun licenses as valid identification but rejected student IDs from state schools. In her majority opinion, George W. Bush appointee Judge Catharina Haynes found that the law had an illegally discriminatory impact on minorities under the Voting Rights Act. Haynes also wrote that there may be “evidence to support a finding that the cloak of ballot integrity could be hiding a more invidious purpose”—that is, outright racism. (Meanwhile, of course, Texas could produce virtually no evidence that in-person voter fraud really occurs.) And in a concurring opinion, two judges cited Whole Woman’s Health as proof that courts must not “ignore evidence of whether a specific law advances a [legitimate] interest or imposes needless burdens,” no matter what the legislature claims.

No judge, though, has castigated phony justifications for voting restrictions as acidly as U.S. District Judge Gershwin A. Drain did in striking down Michigan’s recent ban on straight-party voting. The ban, spearheaded by Republicans, had a disproportionate impact on black voters, and significantly increased wait times and lines at polls in black communities. The state had argued that the prohibition was necessary to “preserve the purity of elections,” “to guard against abuses of the elective franchise,” and to ensure that voters are truly “engaged” in the electoral process. But “[t]hese interests are tenuous at best,” Drain wrote in fiery terms:

[Michigan] has not demonstrated how straight-party voting has damaged, or could possibly damage, the “purity” of the election process. There is nothing “impure” or “disengaged” about choosing to vote for every candidate affiliated with, for example, the Republican Party. A voter may base their vote on any criteria he or she wishes, including party affiliation.

Drain also noted that “there is nothing in the record to suggest that changing the ballot form will encourage voters to become political science scholars before voting,” quipping that the ban itself is thus “ ‘disengaged’ from its own justifications.”

Not every judge to crush a voting restriction this July cited Whole Woman’s Health—but the spirit of the case, its skeptical view of legislative findings seemingly unmoored from reality, lingers behind every decision. So, too, does the Supreme Court’s current deadlock, a 4–4 ideological split that incentivizes pro-voter decisions, at least among circuit courts. The conservatives on the Supreme Court may hate these rulings, but they likely can’t pick up a fifth vote to reverse them. Frozen in a stalemate, the justices have little reason even to hear these cases in the first place. So lower courts are emboldened to issue rulings they know won’t be overturned.

Meanwhile, the lower court judges are getting restless and irritated. The breathtakingly shoddy justifications for these voting restrictions offend their intelligence and judicial sensibilities. This entire charade, the yearslong effort to concoct a nonexistent voter fraud problem and address it by disenfranchising minority voters, seems to be crumbling under judicial scrutiny. Republicans have long assumed that, with the guidance of a conservative Supreme Court, the federal judiciary would rubber-stamp their assault on voting rights. July 2016 marked the month when the courts took off their blinders and began to fight back.