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Judges Use Common Sense to Reject Voter ID Laws

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Are the federal courts revolting against the U.S. Supreme Court by striking down voter identification laws? In 2008, the justices upheld Indiana’s voter ID law, and, in 2013, the court gutted the Voting Rights Act. Together these decisions signaled to the states that they could enact laws that superficially seem like reasonable protections of the voting process but actually make it harder for minorities to vote.

In the last two weeks alone, however, federal courts have used the Voting Rights Act to strike down ID laws in Texas, North Carolina, Wisconsin and North Dakota. The timing of the decisions isn’t coincidental: Courts are rushing to get opinions out in time to set the rules for November’s election. Collectively, the decisions show that the federal courts aren’t giving up the Voting Rights Act for dead -- and that they aren’t taking guidance from the Supreme Court’s conservative majority.

QuickTake Voting Rights

To be sure, the judges’ revolt is at the level of rejecting the Supreme Court’s general tone, rather than openly flouting its decisions. The 2008 challenge to Indiana’s law was under the U.S. Constitution. The court held that the Indiana law didn’t violate equal protection of the law because it wasn’t adopted with discriminatory intent.

The recent decisions typically rely not on the Constitution, but on the more protective Voting Rights Act. It prohibits not only laws adopted with discriminatory intent, but also those that have a discriminatory effect on some voters. So the courts aren’t overturning the 2008 decision; they’re just working around it.

As for the Supreme Court’s 2013 evisceration of the Voting Rights Act, in the case of Shelby County v. Holder, that 5-4 decision invalidated Section 4 of the law, which created a mechanism whereby states with a history of discrimination had to “pre-clear” all changes to their voting rules and districts with the Department of Justice.

That allowed the previously covered states to enact new voting-related laws without being carefully scrutinized first by the federal government. Indeed, as the U.S. Court of Appeals for the 4th Circuit noted, the North Carolina Republican leadership announced its intention to enact a number of voting-related laws the day after the Shelby County case was announced.

Yet the Supreme Court’s opinion left in place Section 2 of the Voting Rights Act, which prohibits any voting procedure “which results in a denial or abridgment” of the right to vote based on race. That’s the provision the courts have been using to strike down the voter ID laws.

Taken as a group, the federal court decisions represent the victory of realistic common sense over legal formalism. When the justices upheld the Indiana law in 2008 -- in an opinion written by liberal Justice John Paul Stevens -- the decision basically said that the state had a legitimate interest in protecting the integrity of the voting process. It discounted circumstantial evidence that the actual point of the law was to make it harder for people without ID to vote -- and that a disproportionate number of such people were minorities who tended to vote Democratic.

Ignoring the real-world political effects of the law is the hallmark of legal formalism. In contrast, the courts that have been striking down voter ID laws have taken seriously the evidence of the laws’ political impact -- not to mention the overwhelmingly partisan context of their adoption.

The best defense that Republicans have for their laws is no longer that they prevent voter fraud, which turns out to be surprisingly minimal. It’s that the laws are meant to discriminate against people who are likely to vote Democratic, not against people of color.

Remarkably, there’s no Supreme Court decision saying that it’s unlawful for a Republican legislature to pass rules making it harder for Democrats to get elected. In fact, that’s what a partisan gerrymander is -- and those have a legacy in American politics going all the way back to the Founding era.

So if voter ID laws were intended to target Democrats, not minorities, they might well be legal.

Here is where statistics become relevant. It may be true that voter ID laws disproportionately affect Democrats. But data suggest that in most cases, the laws’ impact on racial minorities is far more disproportionate than their partisan effect.

Not all statistical analyses in life are sound. But in the case of voter ID laws, where the discriminators won’t admit their intentions, statistics are the best way to demonstrate discrimination.

By relying on real-world political contacts and social scientific data, the federal courts are sending a message to the justices that they will continue to take voting rights seriously notwithstanding the court’s precedents. The court’s composition will change after the presidential election, one way or another. A liberal court is likely to follow the lead provided by the lower federal courts. A court stacked with Donald Trump’s appointees, however, could be expected to enforce its dictates -- and maybe voter ID laws would begin to survive judicial scrutiny once again.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net