Over the past few years, many states took an opportunity — enabled by a 2013 Supreme Court ruling — to pass a series of restrictions on voting that critics argue disproportionately hurt minority voters.
But a series of court rulings last year put many of the new laws, or at least parts of them, on hold. From July through September, different courts across the country issued six rulings striking down some or all of six states’ new voting restrictions. The message was clear: These restrictions are oppressive, particularly for minority voters.
Voting rights advocates and opponents hoped that the battle could eventually work up to the US Supreme Court again, which could settle the issue once and for all.
But a new decision from the Supreme Court isn’t coming just yet. On Monday, the Supreme Court rejected Texas’s appeal of a Fifth Circuit Court of Appeals ruling that struck down part of the state’s very strict voter ID law. And in an unusual move, Supreme Court Chief Justice John Roberts clarified in a statement that this does not mean that the court will never hear the case — but that it is giving a lower court more time to issue its own order on the Texas law.
If and when the Supreme Court rules, it will be stepping into a political and legal battle it helped cause. By striking down parts of the Voting Rights Act in its 2013 ruling, it let states pass a new wave of voting restrictions — leading to a new political and legal battle over voting rights in America.
Supporters of the voting restrictions say that they’re meant to prevent voter fraud. But the evidence increasingly shows that the voter fraud the laws target is vanishingly rare, and these laws really target and disenfranchise minority voters. Ultimately, it’s coming down to courts — and perhaps the Supreme Court once again — to settle this debate.
There are several ongoing legal battles over voting rights
The new voting restrictions generally follow a similar framework. They tend to require a photo ID to vote — and what kind of photo ID is eligible can be strictly defined, so to not allow, for example, a school ID. Some laws eliminated some or all early voting days. And they might limit when someone can register to vote — particularly so they can’t register and vote on the same day.
The concern with the new laws is that, due to socioeconomic disparities, these restrictions disproportionately impact minority voters. For example, since minority Americans are less likely to have flexible work hours or own cars, they might have a harder time affording a voter ID or getting to the right place (typically a DMV or BMV office) to obtain a voter ID, rely more on early voting opportunities to cast a ballot, or require a nearby voting place instead of one that’s a drive, instead of a walk, away from home or work.
But many states have passed new voting restrictions anyway, typically citing concerns about voter fraud. According to the Brennan Center for Justice, 14 states had new restrictions on voting in place for the first time in a presidential election in 2016: Alabama, Arizona, Indiana, Kansas, Mississippi, Nebraska, New Hampshire, Ohio, Rhode Island, South Carolina, Tennessee, Texas, Virginia, and Wisconsin.
This list was larger before. But courts struck down the restrictions in North Carolina and North Dakota from July through September. Courts also ruled against, but didn’t completely strike down, voting restrictions in Wisconsin, Texas, Kansas, and Georgia — and many other legal challenges are underway. For Texas, the ruling led state officials to propose weakening voting restrictions in time for the November 2016 election and spending $2.5 million on voter outreach, according to the Associated Press.
States began passing these new restrictions in 2010, when the Tea Party movement helped Republicans take over state legislatures and governor’s mansions. But they significantly stepped up the restrictions in 2013, when the Supreme Court ruled in Shelby County v. Holder to strike down a crucial portion of the Voting Rights Act that limited certain states’ abilities to pass new restrictions without federal approval.
But the Supreme Court left in place Section 2 of the Voting Rights Act, which “prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups.” It's under this section of federal law that voting rights advocates are challenging states’ new voting restrictions.
So why are states passing these restrictions? Supporters — particularly Republicans — say they’re meant to prevent voter fraud. But critics — increasingly validated in the courts — say these laws infringe on people’s right to vote and target minority voters.
Voting restrictions hurt minority voters most
Since Republican-controlled states began passing new voting restrictions, critics have argued that they hurt minority voters — who are more likely to vote Democrat — the most.
One widely cited 2006 study by the Brennan Center found voter ID laws, for instance, disproportionately impacted eligible black voters: 25 percent of black voting-age citizens did not have a government-issued photo ID, compared with 8 percent of white voting-age citizens. And a study for the Black Youth Project, which analyzed 2012 voting data for people ages 18 to 29, found 72.9 percent of young black voters and 60.8 percent of young Hispanic voters were asked for IDs to vote, compared with 50.8 percent of young white voters.
For civil rights groups, the restrictions harken back to the days of poll taxes, literacy tests, and other rules that were imposed to block minorities from voting prior to the 1965 Voting Rights Act. Like modern voting restrictions, the old laws didn't appear to racially discriminate at face value — but due to selective enforcement and socioeconomic disparities, they disproportionately kept black voters out.
The disparate effect of old laws is clear in the data for black voter registration, which skyrocketed in the South — where these measures were enforced along with other Jim Crow laws — after the Voting Rights Act became law.
Some accusations of voter suppression have come from within the Republican Party. In 2012, ousted Florida Republican Party Chair Jim Greer told MSNBC that concerns about voter fraud are just a “marketing tool” to justify the suppression of minority voters. “Never one time did we have any discussions where voter fraud was a real issue,” Greer claimed. “It’s simply been created as a marketing tool here in Florida for the right wing that is running state government now to convince voters that what they're doing here is right.”
Some Republicans have gone further, arguing that the laws are politically motivated. As William Wan reported for the Washington Post:
Longtime Republican consultant Carter Wrenn, a fixture in North Carolina politics, said the GOP’s voter fraud argument is nothing more than an excuse.
“Of course it’s political. Why else would you do it?” he said, explaining that Republicans, like any political party, want to protect their majority. While GOP lawmakers might have passed the law to suppress some voters, Wrenn said, that does not mean it was racist.
“Look, if African Americans voted overwhelmingly Republican, they would have kept early voting right where it was,” Wrenn said. “It wasn’t about discriminating against African Americans. They just ended up in the middle of it because they vote Democrat.”
This claim is key to the legal challenges against new voting restrictions: If challengers prove that a state’s law has a disproportionate racial impact, and that it intended to discriminate and suppress a certain group of voters, it would justify repealing the law through Section 2 of the Voting Rights Act. And that could also signal to other states that these measures are unacceptable.
Some courts have found that the laws are intentionally discriminatory. Here is Fourth Circuit Judge Diana Gribbon Motz, who wrote most of the opinion in North Carolina State Conference of the NAACP v. McCrory in July, citing the state’s own testimony to explain her decision (emphasis mine):
As “evidence of justifications” for the changes to early voting, the State offered purported inconsistencies in voting hours across counties, including the fact that only some counties had decided to offer Sunday voting. … The State then elaborated on its justification, explaining that “[c]ounties with Sunday voting in 2014 were disproportionately black” and “disproportionately Democratic.”… In response, SL 2013-381 did away with one of the two days of Sunday voting. … Thus, in what comes as close to a smoking gun as we are likely to see in modern times, the State’s very justification for a challenged statute hinges explicitly on race — specifically its concern that African Americans, who had overwhelmingly voted for Democrats, had too much access to the franchise.
As Camila Domonoske reported for NPR, these types of rulings turned into a trend in July and August — as different courts said in multiple rulings that voting restrictions are in effect discriminatory. But some courts, unlike Motz for North Carolina, stopped short of ruling that certain states’ restrictions are intentionally discriminatory — a key legal requirement to apply the full weight of Section 2 of the Voting Rights Act.
Voting restrictions supposedly aim to stop voter fraud
Other supporters of voting restrictions, however, argue that outright discrimination and voter suppression aren’t their intent.
The main goal of new voting restrictions, they say, is to limit the potential for voter fraud — by requiring a photo ID to vote and reducing the number of days in which someone could show up and fraudulently vote. And they claim that these measures aren’t burdensome enough to stop someone from voting.
The research does show that restrictions like voter ID and early voting cuts tend to have little to no effect on voter turnout — at most a few percentage points. But when an election is very close, even a small impact could make a significant difference.
And given the voting restrictions’ disproportionate impact on minorities, there’s also a concern that these laws create more problems than they solve. For one, the type of in-person voter fraud these initiatives target is nonexistent to extremely rare: Loyola Law School professor Justin Levitt has tracked credible allegations of in-person voter impersonation for years, finding 35 total credible allegations between 2000 and 2014, when more than 800 million ballots were cast in national general elections, and hundreds of millions more were cast in primary, municipal, special, and other elections.
Beyond voter impersonation, other kinds of voter fraud are more common but still extremely rare. Based on a previous investigation by News21, there are at most a few hundred allegations of voter fraud of all kinds every election — and nearly half of the allegations with a determined resolution were dropped with no charges upon further investigation. In a national election in which more than 130 million votes are cast, the hundreds of cases amount to a fraction of a fraction of a percent of all votes — simply not enough fraud to affect the outcome of a presidential election.
As Chris Ashby, a Republican election lawyer, wrote for Vox, America has “a system of voting that is one of the cleanest and best in the world — in which all citizens should have faith and confidence.”
That doesn’t mean voter fraud has never happened and never had an impact. The New York Times, for instance, reported on a 1997 case in which it was revealed that Miami Mayor Xavier Suárez clinched his electoral victory “with the help of hundreds of absentee ballots bearing the names of dead people, felons and other ineligible voters.” While Suárez was never charged, he was eventually forced to step down from office after an appellate court threw out the absentee ballots.
But this type of situation, the empirical evidence and experts suggest, is likely far too rare to swing much bigger elections. When debating whether to do something about voter fraud, then, it’s important to consider whether the potential downsides — such as making it harder for people of color to vote or sowing doubt in US elections — are worth the upside of stopping a tiny number of fraudulent votes.
The lack of evidence that the new voting restrictions actually prevent a problem — while potentially causing new ones — is one of the big reasons courts are turning on the measures. As US District Judge James Peterson wrote in regard to Wisconsin, the new voting restrictions are often “a cure worse than the disease.”