This post has been updated. (8:52 p.m.)
Democrats got a victory in a voting rights case at the Supreme Court today — but don’t get used to that headline. There are dark days ahead for voting rights.
In today’s decision, the court didn’t actually judge the case on its merits. It declined to hear a case involving North Carolina’s vote suppression law, which had been struck down by a lower court. In the time since then, Democrats have taken over as governor and attorney general in the state and attempted to withdraw the case over the objection of the legislature, which is still in Republican hands.
There’s no question that this is a victory for Democrats and anyone who cares about the right of all Americans to vote. But it’s important to understand that the North Carolina law differs from other voter restrictions Republicans have passed in that its discriminatory intent was so blatant. As the appeals court that struck it down found, the state’s legislature had obtained data on the racial effects of various voting provisions, then used that information to “target African Americans with almost surgical precision.”
For instance, legislators cut back early voting to eliminate the days African Americans were most likely to vote early, and when it came to the ID requirements, “With race data in hand, the legislature amended the bill to exclude many of the alternative photo IDs used by African Americans.”
If you’re a Republican legislature, the message is clear: When you’re looking to keep African Americans from the polls, just don’t be so obvious about it, and the Supreme Court will probably uphold your restrictions.
Let’s take a step back to understand the context. In 2013, in the case of Shelby County v. Holder, the Supreme Court eviscerated the Voting Rights Act in a 5-4 decision, holding that because racial discrimination in voting isn’t really a problem anymore, jurisdictions that used to have to get “pre-clearance” from the Justice Department before changing their voting laws to make sure they weren’t discriminating were free to do as they like. The result was a mad rush on the part of the newly liberated GOP-run states to find new ways to restrict voting for people who might not vote Republican, particularly African Americans. While voter-ID restrictions are the best known, there are also other restrictions that have similar effects, such as limiting early voting, eliminating same-day registration and cutting back on the number of polling places.
By the time the 2016 election came around, 14 states had newly installed voting restrictions in place. And Republicans aren’t done. It’s all justified to stop a fictitious epidemic of voter fraud, which studies have found is virtually nonexistent. For instance, in North Carolina, with its voter-ID law in limbo, the 2016 election saw a grand total of one (1) case of voter impersonation, out of 4.8 million votes cast. As it happens, it was a woman who impersonated her recently deceased mother, in an attempt to honor her mother’s wish to cast a vote for Donald Trump.
Yet Republicans claim that because it’s theoretically possible for someone to impersonate someone else at the ballot box — even if it almost never happens — we have to employ restrictions that make it hard or impossible for millions of people to register and vote.
And there is absolutely no reason to think that the five conservatives on the Supreme Court are going to stop them. John Roberts, Anthony Kennedy, Samuel Alito and Clarence Thomas have already voted to uphold many different kinds of voting restrictions, and Neil Gorsuch is all but guaranteed to join them.
The case to keep an eye on is the one coming from Texas, which in 2011 enacted one of the most absurdly discriminatory voting laws in the country. It required ID at the polls, but specified that certain kinds of ID more likely to be carried by Republicans (such as concealed-carry licenses) would be considered valid, while kinds of ID more likely to be carried by Democrats (such as student IDs from state schools) wouldn’t. An estimated 600,000 legitimate Texas voters lack the kind of ID the law mandates, and so would be prohibited from voting.
The Texas law has been struck down by a district court, whose ruling was then upheld by an appeals court (which sent it back down for more fact-finding). In January, the Supreme Court rejected an appeal by the state, saying that they wouldn’t hear the case yet while the district court was still rehearing it. Then in April, the district court struck it down again. The Obama Justice Department had supported the plaintiffs, but the Trump Justice Department dropped that position.
That can all be a little confusing, but here’s what matters: With the conservatives on the Supreme Court now at full strength, they will probably hear the Texas case, and none of them have given any indication that they have a problem with the kind of restrictions Texas has in mind. If they uphold that law, it won’t just be Texans who are affected.
That’s because any such ruling would be a handbook for Republican legislatures everywhere, saying in essence, “Here’s how you can go about restricting the votes of racial minorities and young people. Do these things, avoid these other things, and your law will be upheld.”
And I promise you that if the Supreme Court upholds the Texas law, we’ll see just what we saw after the court took a knife to the Voting Rights Act: a rush to enact new restrictions in time for the next election. And they’ll be getting help from the Trump administration, which just impaneled its commission on voter fraud, led by crusading anti-immigrant activist Kris Kobach. The commission will provide the rationale, the Trump Justice Department will provide support, and the five conservatives on the Supreme Court will provide the legal stamp of approval.
The only thing Democrats can do to stop it is to win enough state elections to control the legislatures and governorships so that they can reverse these restrictions. Which, when Republicans have their way, is going to be just a little harder.
Correction: An earlier version of this post incorrectly stated that hunting licenses could be used as voter identification at the polls in Texas. Concealed-carry licenses can be used as voter identification in Texas. This version has been updated.