Election Cases Move Toward U.S. Supreme Court, Risking Deadlocks

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People wait in line to enter the U.S. Supreme Court building on June 20, 2016, in Washington.

Photographer: Mark Wilson/Getty Images
  • Appeals courts poised to rule in Texas, North Carolina suits
  • Court splits may yield conflicting outcomes in various states

At the shorthanded U.S. Supreme Court, the next deadlock may affect the November election.

A group of voting-rights cases is making its way to a court that’s all but guaranteed to have a lingering vacancy through the election. The divisive nature of the issues may leave the eight justices unable to decide who can cast the ballots that will determine control of the White House and Congress.

The disputes involve voter-identification requirements in Texas, Virginia and Wisconsin; an early-voting period in Ohio; a variety of restrictions in North Carolina; and proof-of-citizenship laws elsewhere. The cases pit Democrats and civil-rights groups claiming discrimination against Republicans arguing the steps are warranted to prevent voter fraud.

"They affect the rights of voters to be able to cast an effective ballot that will be counted accurately," said Rick Hasen, an election-law professor at the University of California, Irvine.

The eight-member court deadlocked in four cases in its just-completed term. Justice Antonin Scalia died in February, and Senate Republicans have refused to consider President Barack Obama’s nomination of Judge Merrick Garland to fill the slot.

The vacancy increases the potential for the cases to produce varied outcomes from state to state. A 4-4 Supreme Court split leaves the lower court ruling in place.

The first case to arrive is likely to be the Texas voter-ID fight. The dispute reached the justices two years ago, when a divided Supreme Court rebuffed the Obama administration and let the state enforce the law for the 2014 election.

A federal trial judge found that more than 600,000 Texans, including a disproportionate number of blacks and Hispanics, lacked one of the forms of identification required under the law. The measure lets voters use driver’s licenses, military IDs and concealed-handgun permits, but not student or employee IDs.

Imminent Ruling

Texas officials say those challenging the law haven’t pointed to any specific person who is unable to obtain an accepted form of identification. The state says that it issues free election-identification certificates to people with supporting documentation, and that disabled and elderly people can vote by mail without photo ID.

The litigants are now awaiting what may be an imminent ruling from a federal appeals court. The Supreme Court in April effectively gave the lower court a deadline, saying it would be willing to revisit blocking the law if the appeals court hadn’t acted by July 20.

"You’ve got to believe that whichever side loses" will seek Supreme Court intervention, said Edward Foley, director of the election-law program at Ohio State University’s Moritz College of Law.

A different federal appeals court is taking an expedited look at North Carolina’s voting rules, which include a photo-ID requirement, the elimination of same-day registration, and a reduction in the days available for early voting.

The Supreme Court let the restrictions take effect for 2014 over the dissents of Justices Ruth Bader Ginsburg and Sonia Sotomayor.

Golden Week

Other cases aren’t as far along but still could reach the high court on an emergency basis. In Ohio, the issue is the elimination of a period known as "Golden Week," during which voters could register and cast ballots on the same day. The Supreme Court voted 5-4 two years ago to let the state abolish Golden Week for the 2014 vote.

Civil-rights activists are also challenging proof-of-citizenship requirements in Kansas, Georgia and Alabama, as well as photo-ID requirements in Wisconsin and Virginia.

The Supreme Court upheld Indiana’s photo-ID law in 2008 on a 6-3 vote. Opponents of the requirements say the new laws are stricter than the Indiana measure and in some cases have been proven to be discriminatory.

The high court’s actions two years ago suggested a possible consensus among the justices against any last-minute changes to voting rules, in either direction. That could expedite the timeline for the current round of cases, Hasen said.

"I think we’re likely to see a lot more action in August rather than in September or October this time," Hasen said.

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