“A Much More Difficult Response”: Should The Democrats Abandon Hope Of Getting Relief From Voter Suppression In The Courts?

Yesterday there were two rulings on voting rights cases, both of which were decided in favor of the liberal side of the argument. But don’t get too excited. I hate to be an eternal pessimist on this issue, but neither case is likely to turn out the way liberals and Democrats want. In fact, we’re almost at the point where — until the current makeup of the Supreme Court changes — liberals should keep themselves from ever thinking the courts are going to stop Republican efforts at voter suppression.

I’ll get to the consequences of that in a moment, but first let’s look at the two cases yesterday. The first was in Texas, where a federal judge struck down the state’s voter ID law. In refreshingly blunt language, the judge called the law an “unconstitutional poll tax,” and said that the legislators who passed it “were motivated, at the very least in part, because of and not merely in spite of the voter ID law’s detrimental effects on the African-American and Hispanic electorate.” Which is absolutely true, but that doesn’t mean the ruling is going to be upheld by a Supreme Court that has made it clear that they have little problem with almost any restrictions on voting rights.

But what about the Wisconsin case? There, the Supreme Court halted the implementation of a voter ID law yesterday, so doesn’t that mean they’re open to striking down voter ID laws? Not really. Ian Millhiser explains:

Although the Supreme Court’s order does not explain why the Court halted the law, a short dissenting opinion by Justice Samuel Alito provides a window into the Court’s reasoning. Alito begins his dissent by admitting that “[t]here is a colorable basis for the Court’s decision due to the proximity of the upcoming general election.” In a 2006 case called Purcell v. Gonzalez, the Supreme Court explained that judges should be reluctant to issue orders affecting a state’s election law as an election approaches. “Court orders affecting elections,” according to Purcell, “can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.” It is likely that the six justices who agreed to halt the Wisconsin law relied on Purcell in reaching this decision.

Just the other day, the Court allowed a North Carolina voter suppression law to go forward, but in that case the law had already been implemented. And that’s why we shouldn’t be encouraged by the Wisconsin ruling: it doesn’t imply that the Court believes these restrictions are unconstitutional, only that it would be a mess to have them take effect just a few weeks before the election. It’s a narrow question of election procedure.

It would be going too far to say that Democrats should just abandon all court challenges to these voting laws. You never know what might happen—by the time the next major case reaches the Supreme Court, one of the five conservatives could have retired. But the only real response is the much more difficult one: a sustained, state-by-state campaign to counter voting suppression laws by registering as many people as possible, helping them acquire the ID the state is demanding, and getting them to the polls. That’s incredibly hard, time-consuming, and resource-intensive work—much more so than filing lawsuits. But Democrats don’t have much choice.

By: Paul Waldman, Contributing Editor, The American Prospect, October 10, 2014