Courts around the country are straight killing restrictive voter ID laws. In North Carolina, in Texas, in Wisconsin, and today in North Dakota, federal appeals courts are reviewing laws designed to suppress voter participation and overturning Republican-backed restrictions.
These voter-access victories are only possible because Justice Antonin Scalia is dead.
In 2013, Chief Justice John Roberts accomplished the white man’s long con of ending racism in the South by declaring it over. In Shelby County v. Holder, Roberts gutted the Voting Rights Act, clearing the way for everybody to change their voting laws in whatever way seemed best to them for electing the kinds of candidates they wanted.
Republican-controlled state legislatures pounced, and a slew of state rules sprung into existence aimed at disenfranchising minorities. Republicans claimed they were concerned about “voter fraud,” because in pre-Trump America you couldn’t outright say you were trying to make it harder for minorities to vote. But in force and effect, the new laws disparately impacted minority communities. It was the GOP bulwark against the gentle “browning” of our country.
But the Republicans overplayed their hand. These laws were passed under the assumption that the conservative Supreme Court would provide legal cover to the efforts at racial disenfranchisement. When Scalia died, conservatives lost their fifth vote in favor of voter restrictions.
The lower courts have taken Scalia’s death as a signal that they are safe to defend voting rights again. Just take a look at what a judge in North Dakota — a Bush-appointed judge in North Dakota — had to say about his state’s voter ID requirement. From the Washington Post:
U.S. District Judge Daniel L. Hovland said North Dakota for years had provided a safety net for those unable to provide the specific kinds of ID required, and that eliminating it in 2013 would mean eligible voters are disenfranchised...
“Although the majority of voters in North Dakota either possess a qualifying voter ID or can easily obtain one, it is clear that a safety net is needed for those voters who simply cannot obtain a qualifying voter ID with reasonable effort,” Hovland wrote.
“Voter fraud in North Dakota has been virtually non-existent,” wrote Hovland, who was nominated to the bench in 2002 by President George W. Bush. He said the state “produced no evidence suggesting the public’s confidence in the electoral process would be undermined by excusing those voters who cannot reasonably obtain an ID.”
When Scalia was alive, this decision might be on the fast track for Supreme Court review. Now that he’s dead, few commentators think that the Court will get into this case.
Of course, truly protecting voting rights cannot be done at the judicial level. It can’t be done by the President. Only voters can make a robust defense of the right to vote, and voting in 2016 will have almost nothing to do with it.
You have to vote in 2017. Dear God, you have to vote in 2018. The courts are giving voters a reprieve, but if voters don’t take advantage of it, more subtle yet equally restrictive laws will be back on the books before you are paying attention again in 2020.