David Toscano — Why States Matter: Voting Rights and the Judiciary

Several weeks ago, in  a piece entitled “Why States Matter,” I argued that while we are rightly  focused on the Presidential election, we should not lose sight of what is happening in our states, where  the concerted efforts of conservatives around the country over the last decade have skewed the political composition of our state legislatures – with dramatic results.

As we focus on Congressional, Senate and Presidential contests, we must remember that the actions of state legislatures greatly impact their outcome. What we have seen over the last decade from conservative-dominated legislatures are new laws designed to make it harder to vote and to reduce turnout, especially in minority communities. These laws are justified by so-called voter fraud, which numerous independent studies have shown either to be non-existent or so small that it has no impact. State legislatures, including Virginia’s, continue to impose new requirements for voter identification. Prior to 2006, not a single state required a person to present photo ID in order to vote; by 2015, 34 states had such laws. Virginia enacted its current law in 2014. Many were enacted after the U.S. Supreme Court’s 2013 decision that struck down certain portions of the Voting Rights Act in Shelby County v. Holder. This coincidence has not gone unnoticed.

Courts Take Action

A number of courts have recently ruled that these state actions are unconstitutional. Statutes similar, though not identical, to those in Virginia were just struck down in Wisconsin and Texas. A federal district court in North Dakota has now blocked implementation of that state’s 2013 voter ID law. In Wisconsin, the federal court wrote, “The Wisconsin experience demonstrates that a preoccupation with mostly phantom election fraud leads to real incidents of disenfranchisement.” And last week, the U.S Court of Appeals for the 4th Circuit struck down North Carolina’s voter suppression law, among the most draconian in the country, the court stating that the law’s provisions targeted African-Americans with “almost surgical precision.” This same court will hear the case against Virginia’s photo ID law on September 22, 2016.

Some courts are acting to correct the most insidious voter suppression laws. But in states where these laws  remain, they  will likely depress turnout, especially among minority voters. A new study by researchers at the University of California at San Diego suggests that Democratic turnout drops an estimated 8.8 percentage points in general elections in states with strict ID laws and Republican turnout drops 3.6 percentage points. In Virginia, the Department of Elections says 179,000 “active voters” have no DMV-issued photo ID. These numbers are so high that they are almost hard to believe. Nonetheless, it is clear that conservative legislatures are attempting to suppress the vote in order to keep power.

Some citizens will be encouraged by court decisions, saying that “the Courts and the Constitution will have our backs” by overturning these suppression efforts. But lawsuits cost money and take time, and despite these recent decisions, courts generally defer to legislatures; the battlegrounds remain, therefore, in the legislatures.

Gubernatorial overreach, or voter suppression?

In Virginia, the rallying cry has become “they are making it harder for people to vote – make sure you bring your ID to the polls.” But voting should be made easier, not harder. And when Virginia Democrats proposed to make it easier, for example, with measures that would allow early voting for persons over 65, same day registration, and no-excuse absentee voting, the answer from the Republican House of Delegates has been a resounding “No.” In Virginia, the only thing preventing more draconian voter suppression efforts from being enacted into law is a Governor’s veto, together with  enough Democrats in the legislature who will sustain it.

One way to view the recent dispute surrounding Governor McAuliffe’s efforts to restore voting rights to felons who have paid their debt to society is through a lens of voter suppression. We have heard a lot about “second chances” and “redemption,” but when the Governor attempted to accelerate the process for reviewing individual applications for rights restoration by hiring more staff, the House Republicans just  said “No,” and offered no alternative to help  streamline the individual application process. In fact, they have voted against all legislation that would do so. Consequently, to speed up restoration of these rights, the Governor acted to restore rights to all felons who met specific criteria. The Virginia Supreme Court, in a 4-3 decision in Howell v. McAuliffe, the swing vote coming from the recent Republican appointee in the aftermath of Justice Jane Roush’s firing, overturned the Governor’s Executive Order, despite the plain language of Article V, Section 12 of our Virginia Constitution that states “The Governor shall have power…to remove political disabilities consequent upon conviction….”

State House to Courthouse

In Virginia, not only does the state legislature make the laws about who can vote, when they can vote, and how they can vote, but it appoints the judges who interpret these laws. And slowly but surely, our judiciary is being populated with conservative judges; the decision in Howell v. McAuliffeshows clearly how these appointments matter. This is yet another reason why we need to work to change the House of Delegates. Who knows how Justice Roush would have approached the felon restoration of rights issue, or whether her presence would have changed the vote. We do know, however, that rules about voting and the interpretation of laws by judges appointed by state legislatures again show “Why States Matter.”