Robert Barnes
The High Court

Tidying up the 2012 election

They are still counting votes in Ohio, a process that once seemed as if it might transfix the nation and require the attention of the Supreme Court, but now it’s something more like an asterisk.

County elections boards around the state are putting the finishing touches on the democratic process. They must decide which of the more than 200,000 provisional ballots should be accepted and which rejected.

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A look at key factors in the 2012 presidential election.
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A look at key factors in the 2012 presidential election.

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The finale is rigorously bipartisan.

In Cuyahoga County, home to Cleveland, each of the approximately 30,000 provisional ballots may be examined only when pairs of Democratic and Republican eyeballs are available. Moving paper from one side of the room to the other requires a bipartisan escort. And the keys to the locked room where the ballots are stored are kept in a safe that can only be opened when an R provides half the code and a D provides the other.

If only each of the legislative and administrative steps along the way had been so collaborative.

Instead, in an election year in which charges of voter suppression and voter fraud at times made as many headlines as the candidates, it was the courts that practiced the art of political compromise.

The Brennan Center for Justice at New York University School of Law, which was a loud critic of the voting law changes advanced mostly by Republican-led legislatures around the country, said 25 new laws and two executive actions were adopted in 19 states.

And where those laws were challenged in the courts, plaintiffs were routinely successful.

“Virtually every court to consider a law or policy restricting voting this past year found in favor of the voters,” was the Brennan Center’s take in a report issued after the election. “Overall, 11 court decisions in eight states blocked or blunted new laws that would have made it harder for eligible Americans to vote.”

But often the judges, mostly federal judges but also those on state courts in Pennsylvania and Wisconsin, were simply pragmatic.

Laws that require voters to show a picture ID may be fine, the judges said in several high-profile cases, but only if voters who don’t have such identification receive reasonable time to secure it or have a good excuse.

States may change early-voting laws, or not offer early voting at all, the courts said. But state law cannot be altered in ways that treat classes of voters differently, or disproportionately hurt minorities or the poor.

In Florida, a federal judge noted that the state had a strong interest in making sure that the groups that register voters were aboveboard. But a new law with reporting requirements so punitive that the League of Women Voters shut down operations “is a bad choice,” Judge Robert Hinckle said.

Likewise in Ohio, a law that disallowed the counting of provisional ballots that were flawed because of poll-worker error, rather than a voter’s mistake, struck a unanimous panel of the U.S. Court of Appeals for the 6th Circuit as “fundamentally unfair.”

A common element of almost all of the challenged laws is that they come from states where one party controls both the legislature and the governor’s office. Compromise was most often a missing ingredient.

Pennsylvania’s voter ID law, for instance, was approved in the spring by the Republican-led legislature and signed by its new governor before the state had any idea how many voters lacked the kind of identification required by the new law, or whether it could be provided in time for the fall elections.

Pennsylvania Supreme Court Justice Seamus P. McCaffery, elected as a Democrat, wrote: “While I have no argument with the requirement that all Pennsylvania voters, at some reasonable point in the future, will have to present photo identification before they may cast their ballots, it is clear to me that the reason for the urgency of implementing Act 18 prior to the November 2012 election is purely political.”

There is every reason to believe that courts increasingly will be called upon to play the role of the loyal opposition. The Associated Press reported last week that after the 2012 elections, all but three states — Iowa, Kentucky and New Hampshire — have one-party control of their legislatures, the highest number since 1928.

The Supreme Court already has two cases on its docket concerning voting. One examines whether an Arizona law that requires proof of citizenship before someone may register to vote conflicts with federal voter registration laws.

The other tests the constitutionality of a key provision in the Voting Rights Act — Section 5 — which requires some states and local jurisdictions, most of them in the South, to receive federal approval before changing their voting laws.

Proponents of the law note that the Justice Department used Section 5 to object to new laws from Texas, Florida and South Carolina, and judges either blocked the laws from going into effect or required changes to mitigate harm to minority voters.

But opponents say it makes no sense, nearly 40 years after the passage of the Voting Rights Act, to require federal approval for South Carolina’s voter ID law but not Pennsylvania’s.

The legal battles of the 2012 election will serve as a backdrop for the court’s deliberations.

 
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