Supreme Error


Usually it takes years to judge when the Supreme Court gets something very wrong. Think of line-height:150%;font-family:"Verdana","sans-serif";mso-fareast-font-family:
"Times New Roman";mso-bidi-font-family:"Times New Roman"”> for the court in the 2010 campaign-finance case, Citizens United, freeing corporations to spend money on elections. He wrote that the “appearance of [corporate] influence or access will not cause the electorate to lose faith in our democracy,” a point that remains hotly debated even as the amount of money in federal elections
line-height:150%;font-family:"Verdana","sans-serif";mso-fareast-font-family:
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But the conservative justices’ decision this past June in line-height:150%;font-family:"Verdana","sans-serif";mso-fareast-font-family:
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line-height:150%;font-family:"Verdana","sans-serif";mso-fareast-font-family:
"Times New Roman";mso-bidi-font-family:"Times New Roman"”> we’ve seen since the 1965 enactment of the VRA. Texas is
line-height:150%;font-family:"Verdana","sans-serif";mso-fareast-font-family:
"Times New Roman";mso-bidi-font-family:"Times New Roman"”>, who ironically will have to try to fix the problem using the very mechanism of voting—which the North Carolina legislature is inhibiting.

Back in 2009, the court considered whether to strike down Congress’ renewal of the rule requiring jurisdictions with a history of racial discrimination in voting to get federal approval before making changes in their voting laws. The feds had to withhold approval unless the covered jurisdictions demonstrated the law would not make minority voters worse off and was not motivated by an intention to do so.

During oral arguments in that 2009 case (which ultimately line-height:150%;font-family:"Verdana","sans-serif";mso-fareast-font-family:
"Times New Roman";mso-bidi-font-family:"Times New Roman"”> the constitutional question), Chief Justice Roberts
10.0pt;line-height:150%;font-family:"Verdana","sans-serif";mso-fareast-font-family:
"Times New Roman";mso-bidi-font-family:"Times New Roman"”> shows. No problem, the Shelby County Justices might say, just use all those other tools to fight racial discrimination in voting.

But not so fast. It turns out that thanks to the Supreme Court’s ruling in various cases, these other tools are unlikely to work to challenge most provisions of the new North Carolina law. To begin with, if North Carolina can demonstrate that it is motivated in its election laws by an intent to discriminate against Democrats rather than on the basis of race (despite the high correlation between the two), many constitutional claims will fail for lack of proof of intentional racial discrimination. Texas has already made line-height:150%;font-family:"Verdana","sans-serif";mso-fareast-font-family:
"Times New Roman";mso-bidi-font-family:"Times New Roman"”> of impersonation fraud which could justify the law. As for Section 2, the other part of the Voting Rights Act that Justice Kennedy touted as a good substitute for the end of preclearance: there hasn’t been a successful Section 2 challenge to voter id laws, and outside of redistricting cases the courts have read Section 2 very narrowly. And the chances
line-height:150%;font-family:"Verdana","sans-serif";mso-fareast-font-family:
"Times New Roman";mso-bidi-font-family:"Times New Roman"”> that the Department of Justice can prove enough intentional discrimination by North Carolina to get it “bailed in” to preclearance under another provision of the Voting Rights Act.

To be sure, some of these provisions likely will be found to violate the Constitution. Students have a line-height:150%;font-family:"Verdana","sans-serif";mso-fareast-font-family:
"Times New Roman";mso-bidi-font-family:"Times New Roman"”> to register and vote where they go to school.
10.0pt;line-height:150%;font-family:"Verdana","sans-serif";mso-fareast-font-family:
"Times New Roman";mso-bidi-font-family:"Times New Roman"”> has held that it is unconstitutional for Ohio to disenfranchise voters casting provisional ballots if they were sent to the wrong precinct because of voter error. A few other provisions are likely to fall too, maybe in state courts under the state constitution.

But the main fight over these laws is going to line-height:150%;font-family:"Verdana","sans-serif";mso-fareast-font-family:
"Times New Roman";mso-bidi-font-family:"Times New Roman"”> have been considering whether there will be enough political backlash to overcome these North Carolina shenanigans. But thanks to these very laws, it will take a lot of effort to get people to the polls casting valid votes to go against the laws. And that’s part of the point.

It’s enough to make one wonder whether the Justices in the Shelby County majority actually thought minority voters would still have effective tools to fight discrimination after the Justices struck Section 5, or if they suspected all along that a stampede of elephants was right around the corner. 

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