A Surge in Voting Laws May Mean a Suppression of Votes this Election Season

Anna Quinn, Loyola University:

Last Monday, the Supreme Court unanimously ruled that states are allowed count all residents—not just eligible voters—when drawing election districts. The suit, Evenwel v. Abbott, was brought by Sue Evenwel and Edward Pfenninger in response to a Texas redistricting plan implemented in 2012. They claimed the plan violated their Fourteenth Amendment rights, as “their votes were worth less than those of voters in districts with large numbers of people ineligible to vote.” The Supreme Court, however, ruled that counting the total population was a viable method under the law.

Although Justice Thomas and Alito recognized in the concurring opinions that this does not mean total-population counts are the only method available to states, media sources are analyzing the possible political implications of this strategy. The New York Times, for example, noted that areas with increased numbers of residents who cannot vote would have strengthened voting power. Since these places are usually urban areas that vote Democratic, the ruling is most likely to benefit the Democratic Party.  The Times recognized that if the Court had required only eligible voters to be counted, rural areas would have seen amplified voting power—a win for Republicans.

These political ramifications of a seemingly small change in the law underscore the importance of voting laws in influencing the electoral process. Evenwel v. Abbott was not the first, and certainly won’t be the last, Supreme Court Case that could help a political party rack up more votes. In fact, the past few years have seen substantial debate over which voting policies state and local governments can lawfully use. For instance, a 2013 Supreme Court decision on the Voting Rights Act has created a shift in government oversight of these strategies. The case essentially struck down the preclearance provision of the Act that required states with a history of discrimination to allow their voting practices to be reviewed by the federal government before implementation. While the decision did not outlaw preclearance, it ruled that the formula used in the Voting Rights Act to determine which states necessitated the government check was outdated and therefore no longer viable. The removal of this provision lifted federal review from nine states and various local governments.

Voting law has also seen noteworthy controversy on the state and local level, in part due to this 2013 Supreme Court decision. The Brennan Center for Justice estimates that 113 bills restricting access to registration and voting were introduced in 33 states in 2015. For instance, Texas put into effect a voter ID law that had previously been blocked by preclearance standards. 36 states hold similar, but varied, laws requiring voters to show ID at the polls. The strictest of these laws limit the types of IDs that are accepted, such as requiring a government-issued photo ID or rejecting the use of U.S. Veterans Administration ID cards. Many of these policies have been criticized for disproportionately affecting minorities and making it difficult for certain populations—such as the homeless—to cast their vote. Both Texas and North Carolina are currently facing lawsuits based on these criticisms. Local restrictions also include reduced registration and voting hours. Many states, including Ohio and Wisconsin, have made cuts to early voting days. In addition, Ohio has eliminated the option of same-day registration.

Laws like these go beyond last week’s Supreme Court decision about how votes are counted and affect whether or not people are even able to cast a vote in the first place. In a country that the Pew Research Center finds “trails most developed countries” in voter turnout, it seems odd that the recent surge of laws are focused on restricting votes rather than increasing them. The United States only saw 53.6% of its eligible voters participate in the 2012 elections, landing 31st out of the 34 countries studied. What, then, could the justification for these new policies be? Most states cite preventing voter fraud as the main reason for implementing these laws. However, The New York Times finds that only .00000013% of the votes cast between 2002 and 2005 were found guilty of voter fraud. Therefore, either the state legislators are uninformed of the rarity of fraud, or they are motivated by another interest. This interest, many would argue, is an effort to prevent certain voters from participating—or in other words, discrimination.

With the 2013 decision of removing preclearance, however, it makes it difficult to prevent such discrimination without case-by-case lawsuits. Even so, these suits are brought only after the law has been implemented and therefore already influenced who was able to vote. Wisconsin Congressman Jim Sensenbrenner argues that without the preventative measure of preclearance there is no adequate remedy for voter discrimination after an election since, “there is no way to know who would have won absent discrimination.” He has even introduced the Voting Rights Act of 2015 in an effort to reinstate this preclearance provision. The Act would “modernize” the criteria so that the outdated formula struck down in the Supreme Court decision would be replaced by new rules—a jurisdiction that had been convicted of voter discrimination 5 times in the last 15 years would face preclearance. The bill is still being debated in the House.

Ultimately, while last week’s Supreme Court ruling doesn’t fall under the surge in voter restriction policy, it should spur a debate over what is acceptable in local voting policies. If anything, it should reflect the influence even a minor law change can have on election results. The more significant decisions, though, seem to be found not in litigation but rather legislation. The recent ruling makes a statement on the “one person one vote” principle, but the new laws affect whether one person would be able to vote at all.

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