The looming election and the Supreme Court will converge in the coming months as voting rights challenges on issues such as Voter ID, early vote cutbacks and same-day registration make their way to the high court.
Challenges during an election year are always fraught, but this cycle things could grow even more complicated because the court only has eight members to review the cases, and there’s a good chance that it could split 4-4.
In the recent past, the Supreme Court has signaled that it does not like courts to disrupt rules and regulations too close to an election out of the fear that it could cause confusion to voters. As such, there might be a sentiment on the court — when it rules on one of the emergency motions it is certain to get — to vote to preserve the status quo until after the election and then agree to take up one or two cases and settle the big issues concerning the meaning of the Voting Rights Act and how the Constitution applies to current laws regulating the voting process.
But what happens if the court splits 4-4 on the emergency motion? Deadlock. It means that the Supreme Court will simply uphold the lower court decision and set no new precedent. That could produce a situation where –depending upon where you live — you might play by a different set of rules.
“The key truth is that we are most probably not going to get answers to the big questions until after November, and likely not until we get a ninth justice,” said Edward Foley an election law professor at the Ohio State University.
In the meantime, Foley believes, the country could face a situation “where each circuit might be the final arbiter for each state in this year’s election.”
Such a patchwork of rules and regulations will once again highlight the impact of a 4-4 court on the country.
Here are four cases to watch between now and Election Day:
Texas voter ID
Texas passed a Voter ID law in 2011, but it did not go into effect until 2013 when the Supreme Court invalidated a key section of the Voting Rights Act.
The law requires voters to present certain government-issued photo IDs when voting in person, which includes identification such as a Texas drivers license, a Texas election identification certificate, a U.S. passport, or military identification card.
Challengers of the law say it is one of the strictest nationwide and allows the use of only a limited set of identification. Over the strong objection of Justice Ruth Bader Ginsburg, (joined by Justice Elena Kagan and Sonia Sotomayor) the law was allowed to remain in effect for the 2014 election. It is currently before the 5th Circuit Court of Appeals.
Mindful of the approaching election and any allegations that a decision too close to the election could confuse voters, the Supreme Court issued an order in April that suggested that the lower court should rule on the issue by July 20.
Other voter ID challenges are percolating in Wisconsin, as well as Virginia.
North Carolina
Critics call North Carolina’s HB 589, signed by Gov. Pat McCrory in 2013, a “monster bill” because it includes voter ID, restrictions on early voting days, and elimination of same-day registration. The 4th Circuit Court of Appeals heard arguments in the case at the end of last month. Challengers, including the Department of Justice, the NAACP and the League of Women Voters say that the restrictions will have an outsized impact on the state’s African American population who are more likely to vote during early vote and use same day registration.
The law was upheld by a district court judge and North Carolina argues in court papers that the plaintiffs failed to prove the law was an “unconstitutional burden on any voters, much less African American Voters.”
Attorneys for the Brennan Center for Justice at N.Y.U. School of law counter that the law was enacted “under highly rushed and sharply polarized circumstances, after the 2012 election “where early voting and same day registration were used heavily by African-American voters.”
Ohio
Another major challenge is brewing in Ohio, where the Democratic Party has joined a fight against the Ohio legislature’s elimination of so-called “golden week” that allowed Ohio voters to both register to vote and cast and early ballot at the same location.
In May of 2016, a federal district court judge found that the elimination of “Golden Week” imposed a “modest burden” on the right to vote of African Americans and said that the state’s justifications for the law “fail to outweigh that burden.”
Election law expert Rick Hasen points out in his Election Law Blog that the opinion was a “big victory” for Democratic National Committee lawyer Marc Elias and Democrats who brought the suit. “Democrats,” wrote Hasen, “have relied heavily on Golden Week in the past and fought the Ohio Legislature (dominated by Republicans) to keep it.”
Ohio Attorney General Michael DeWine argued in court papers that “Ohio is a national leader in making voting easy,” and said that his state’s voting calendar remains “one of the most expansive in the country.”
Wisconsin
Besides a challenge to Voter ID, Democratic voters in Wisconsin, represented by the Campaign Legal Center, are challenging the state Assembly redistricting map arguing that it constitutes an unconstitutional partisan gerrymander.
“As a result of the lines drawn, even when more Democrats cast votes in Wisconsin, a large majority of Republican legislators are elected,” said Ruth Greenwood senior redistricting counsel with the Campaign Legal Center. “We think this is undemocratic and unconstitutional.”
A federal district court held a trial in the case last May. The Supreme Court has not yet decided upon a standard for determining when a map is so partisan that it is unconstitutional.