What is a Discriminatory Voting Law?

Posted: November 7, 2016 by beguide in Election, Uncategorized

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With twenty four hours to go before Election Day, it seems like the parameters of what constitutes legal/illegal voting procedures is completely up in the air.   It is safe to attribute this development to Shelby County v. Holder, the Supreme Court case which invalidated the Voting Rights Act, left States with more leeway to pass voting regulations, and gave Courts no guidance on what constitutes voter discrimination.  Within the law, such uncertainty is known as a “matter of first impression”, where the Court is asked to resolve an issue that has no precedent.  The Supreme Court will likely provide some context in McCrory v. Harris, but in the meantime, let’s consider four recent rulings and what they might say about what constitutes an illegal voting statute on November 7, 2016.

PA Ballot Provision on Retirement Age

Pennsylvania contains a ballot provision seeking to raise the retirement age of judges from 70 years old to 75 years old. The wording of the provision has been contested because it does not state the current age of retirement or that a retirement age currently exists, which challengers argue does not give voters an accurate view of the issue. The background of this dispute is divided down party lines, where it is alleged that Republicans advocated for this language in hopes of passing the provision so that the current Chief Justice can stabilize the Republican presence on the Supreme Court.

What Does This Say About Voter Discrimination

This case doesn’t serve as an example of voter discrimination per se, but more to set the table for how bipartisan politics that enter into voting procedures.  This issue should be straight forward, but the nominal wording of the ballot makes this either a facially neutral provision dealing with retirement age or a political mechanism used to manipulate voters.  While it is easy to cry foul, we shouldn’t forget Harlan’s Razor, which warns against attributing malice to what is adequately explained as stupidity.  Ultimately, fraud is in the eye of the beholder, and the extent to which you attribute malicious intent to circumstantial evidence is likely a greater indicator of what is happening here rather than how you plan on voting this Tuesday.

 

Ohio Injunction Against Trump Supporters

Trump supporter Roger Stone planned on monitoring Ohio voting sites under a program called “Stop the Steal”, which sought to prevent election fraud by monitoring voting sites and conducting post-ballot polling.  Fearful that this would intimidate voters, plaintiffs sought an injunction barring the group from engaging in any activity that would dissuade voter turn-out.  The injunction was granted, ordering both parties to desist in any activity that would “harass”, “delay”, or “interrogate” voters.  At the time of publication, this order was appealed to both the 6th Circuit Court of Appeals and the Supreme Court.

What Does This Say About Voter Discrimination

This ruling also speaks less to specific voter discrimination, and more to how Judges seem more willing to make aggressive rulings to protect voting rights.   This particular ruling is a strange one, because it is at best duplicative of existing Ohio statutes preventing voter intimidation, and at worst a violation of First Amendment Free Speech rights.  It is also hard to see how effective this order is since barring people from “hindering”, “delaying” or “interrogating” voters is pretty subjective, as any person standing outside of a polling station handing out signs is just as likely to be violating this order than a loud, conspiracy-theorist Trump supporter.  Finally, a civil injunction has less effectiveness than a criminal statute; since it requires more affirmative action on behalf of the plaintiffs to ensure that the judge’s order is being enforced.  This is not to say that this injunction won’t help stop intimidating activity, but it may turn out to be an “ask-for-forgiveness-instead-of-permission” situation, where anyone inclined to monitor voting sites is probably indifferent to civil penalties anyhow.  In the end, this order has good intentions, but it’s mostly sizzle and not a lot of steak.

 

SCOTUS Denies Appeal on Michigan Straight Ballot Ban

Michigan lawmakers passed a host of voting laws which generally made voting more difficult for the citizens of Michigan. In addition to limited early registration and passing voter ID laws, Michigan eliminated straight ticket voting, which allows voters to cast a ballot for all candidates down party lines.  The purpose behind this law was to encourage better voter participation and since voters would have to affirmatively choose each candidate rather than just press one button for “democrat” or “republican”.  In August, the straight ticket ballot was declared invalid by Federal Courts for unduly prejudicing of African American voters, on the theory that straight ticket ballot is used with great frequency by African American voters and doing away with this procedure would create longer voting lines and discourage voter turn-out.  Michigan lawmakers appealed the decision to the Supreme Court, who declined to hear the appeal.

What Does This Say About Voter Discrimination?

Now this is more like it, as this is a quintessential post-Voting Rights Act law that looks fine at first blush but is actually discriminatory against both minority voters and Democrats.  If we break down the Court’s analysis on these laws, there are two big concerns; which are (1) the practical effect of the law and (2) whether there is a real need for the passing this law that warrants inhibiting anyone’s right to vote.  One can assume that any law discussed in this spectrum unduly prejudices non-white voters, so let’s call that a given. The key here is the second element; and in this case, there isn’t any legitimate reason to ban straight ticket voting if it creates any chilling effect on voter turn-out. The asserted reason, which is to encourage informed voting, is an issue of very little concern because it assumes anyone cares about lower ballot offices or that it matters whether your lieutenant governor is Republican or not. So if we’re balancing purpose v. effect, we can safely say that any law which actively chills voter turnout has to be based on a real problem that warrants government intervention.

 

SCOTUS Reverses 9th Circuit and Upholds Ban on “Ballot-Harvesting”

Arizona passed a law that made it a felony for any non-authorized person to deliver early-voting ballots on behalf of someone else.  Challenges to this law under the discriminatory provisions of the Voting Rights Act lost at the introductory levels, but won in the 9th Circuit in an en banc ruling.  Just this past Saturday, the Supreme Court got time and a half by reversing that decision and reinstating the law in time for tomorrow’s election.

What Does This Say About Voter Discrimination?

Let’s compare this ruling with the Michigan law from above to note the differences.  First, both laws have a negative impact on non-white voters, so clearly the Court is not solely concerned with whether the law has an effect on voter turn-out.  Instead, the primary difference between these two rulings is whether the law’s stated purpose addresses a real problem or if the law addresses a problem that doesn’t warrant government intervention. Whereas a ban on straight ticket balloting poorly address a hypothetical concern, you can see where a law requiring voters to cast their own votes is supported by a legitimate government interest. Allowing third parties to collect votes may help low income, underrepresented parties; but one person showing up with a box of votes looks shady, even if you have to picture the other side doing it to see where the problem lies.  Even if voter fraud is less prevalent than this election would want you to believe, requiring people to be responsible for their own votes has enough of a basis to warrant some infringement on voter turn-out.

So what have we learned?  By way of background, any voting law will have to pass scrutiny from both bipartisan challengers and a judicial system that will not rubber stamp facially-neutral laws that inhibit the right to vote. There also seems to be a balance of two considerations, with the basis supporting the law having greater weight than the effect on voter turn-out.  Although the Court is not afraid to infer discrimination, the Court won’t consider the Voting Rights Act to be a blank check that permits any voting practice that is used by non-white voters. The provisions in McCrory fit somewhere in the middle of these two cases; and while all of those provisions skew more toward Michigan than Arizona, this is clearly a swing vote situation that is just as likely to be 4-4 split than to produce an opinion giving clarity to a problem that is getting worse even at the 11th hour.  The key is here is to not forget about this problem two days from now, as resolving the ineffectiveness of the Voting Rights Act is easiest and best way to ensure that these problems are resolved years ahead of time, and not hours before the election takes place.

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