Will the Supreme Court Re-Visit Voting Rights Before the 2016 Elections?

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Will the Supreme Court Re-Visit Voting Rights Before the 2016 Elections?

Jessica Mason Pieklo

A petition filed by voting rights advocates urges the Roberts Court to settle whether restrictive voter ID laws violate the Voting Rights Act prior to the 2016 presidential election.

Civil rights advocates want the Supreme Court to step back into the fight over voting rights, urging the Roberts Court to act soon and strike down Wisconsin’s 2011 voter ID law or risk getting caught in the “untenable position of referring voter ID disputes in the run-up to the November 2016 election.”

Wisconsin Act 23 mandates that voters show one of nine specific forms of identification in order to vote either by absentee ballot or in person.

Wisconsin lawmakers passed the law more than three years ago, but because of ongoing legal challenges to its constitutionality, the restrictions have only been enforced once in a state primary election, in 2012. Two state courts blocked the law’s enforcement in 2012 on the grounds that it violates the state constitution. Meanwhile, a federal trial judge in April ruled that the law violates the U.S. Constitution as well as Section 2 of the Voting Rights Act of 1965. 

A conservative panel of judges from the Seventh Circuit Court of Appeals in September issued a temporary order allowing the state to enforce the ID requirements in the November 4 general election.

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Then, in October, the Roberts Court stepped in and blocked the law from being enforced in the midterm elections.

In its latest filing, the American Civil Liberties Union and the League of United Latin American Citizens, in a joint petition filed with the Advancement Project, argues that the fight over Wisconsin’s voter ID law “raises recurring questions of fundamental national importance,” which makes Supreme Court review appropriate at this time.

The petition alleges that Wisconsin’s law violates Section 2 of the Voting Rights Act and that the Seventh Circuit’s decision to allow the law to go into effect was based on a “profound” misreading of the civil rights law.

“Efforts to restrict access to the ballot demand a full and thorough hearing, which is why we are asking the Supreme Court to review this case and ultimately strike down Wisconsin’s voter ID law,” Dale Ho, director of the ACLU’s Voting Rights Project, said in a statement following the filing. “Throughout years of litigation, Wisconsin has failed to identify a single instance of the type of fraud this law purportedly seeks to prevent. At the same time, it is absolutely clear this law would prevent thousands of voters from exercising the most fundamental right in our democracy.”

In 2007 the Supreme Court upheld the constitutionality of an Indiana voter ID law in Crawford v. Marion County. Since Crawford, legislators in conservative states have passed a host of restrictions that test the limits of the reasoning in the decision. The result has been uncertainty in the federal courts and confusion on the eve of elections.

The filing argues:

Since Crawford, lower courts’ uncertainty over the validity of voter ID laws has caused confusion on the eve of elections. It is now exceedingly clear that the main justification for voter ID laws—to prevent in- person voter fraud—is pretextual. Putting the merits aside, this Court’s review is desperately needed.

According to the petition, in the six years following Crawford, 17 states enacted new and increasingly restrictive voter ID laws. Including Wisconsin, eight other states have enacted so-called “strict” photo ID requirements without safeguards to ensure that voters lacking a qualifying photo ID can cast a regular ballot.

Those states include Arkansas, Kansas, Mississippi, North Carolina, Pennsylvania, Tennessee, Texas, and Virginia.

In 2013 the Roberts Court gutted a portion of the Voting Rights Act in Shelby County v. Holder, deeming unconstitutional the formula used to determine which jurisdictions with a history of racial discrimination in voting must get congressional “pre-clearance” before enacting changes to their election laws.

Should the Roberts Court agree to hear the Wisconsin challenge, it would be the first vote denial case to go before the Supreme Court under Section 2 of the Voting Rights Act and since the Shelby County v. Holder ruling.