Rushing to establish the rules of the road for the upcoming national elections, federal courts in recent weeks have issued a cascade of decisions rolling back restrictive voting laws enacted in the aftermath of a major Supreme Court decision.
In 2013, the high court struck down a key section of the 1965 Voting Rights Act. No longer would areas of the country with a history of discrimination in voting be required to pre-clear all changes in voting laws and procedures.
"Our country has changed," wrote Chief Justice John Roberts for the conservative five-justice majority. Nearly 50 years after the Voting Rights Act became law, he said, instances of blatant race-based discrimination were rare.
But as soon as the covered state and local governments were freed from the pre-clearance mandate, Republican legislatures in some 17 states adopted new laws that civil rights groups said were targeted at suppressing the minority vote. Among the controversial measures: strict voter ID requirements, elimination of early voting days, and a variety of other provisions.
The Supreme Court, for the most part, allowed those restrictions to remain in place for the 2014 elections, arguing that the fall of an election year is too late to intervene without causing chaos and confusion.
This year the shoe is on the other foot. Courts have fairly consistently been striking down those restrictions, culminating in some big wins for civil rights forces in late July and early August.
The biggest win for voting rights advocates was in North Carolina, where a federal appeals court panel unanimously threw out not only the voter ID requirements, but numerous other provisions that the court said were enacted with the intent of making it harder for minorities to vote. The judges pointedly observed that Republican leaders drew up the new laws in North Carolina only after receiving data showing that African-American voters would be the most significantly and adversely affected. "We cannot ignore the record evidence that, because of race, the legislature enacted one of the largest restrictions of the franchise in modern North Carolina history," the panel wrote.
The other huge win was in Texas, where the Fifth Circuit Court of Appeals, perhaps the most conservative federal appeals court in the country, balked at the Texas voter ID law, ordering the lower court to make it easier for people to vote.
Similar rulings followed in Wisconsin, Ohio and South Dakota. And in Kansas, a state with a foreign-born population of 6.8 percent, courts have repeatedly rejected efforts by the Republican secretary of state to require voters to provide proof of citizenship to vote.
When they were first proposed, voter ID laws sounded reasonable to lots of people, including the Supreme Court. The Justices upheld an Indiana voter ID law in 2008. But even the judges who wrote key opinions upholding the law in that case have since expressed concerns about how voter ID laws work out in practice. Supreme Court Justice John Paul Stevens and Judge Richard Posner have noted that the Indiana case came to them as a blanket challenge to the law, without an evidentiary trial. Both have since suggested that the proof offered subsequently in other states shows these laws are aimed at suppressing the minority vote.
In defense of these laws, the states have said that they are aimed at preventing voter fraud, but court decisions this year have pointed to study after study showing there is virtually no evidence of so-called in-person voter fraud in modern times. While there may well have been such fraud at other points in American history, and while there have been limited examples of absentee ballot fraud, there are precious few examples today of people showing up at the polls to cast a ballot they are not entitled to cast. Indeed, judges have used words like "phantom" to describe the problem of voter fraud.
The states maintain that it's easy to get a government ID to present at the polls, but the courts respond, in essence, "not so fast." In Texas, for instance, the district court found that some 600,000 eligible voters didn't have one of the IDs required under state law to cast a ballot.
Many people don't drive, and states may accept a hunting license or a military ID as legitimate identification, but not a government employee card or student ID, or a Medicaid or Medicare card. So this week Texas agreed that for this election it would allow people who don't have the requisite ID to sign an affidavit at the polls, swearing to their identity, as long as they have some form of identification.
These voting battles are far from over, but for those states like North Carolina that are making an 11th hour pitch to the Supreme Court, asking the justices to block the appeals court ruling, there may not be the votes to do that. Many of the justices may already consider it too late to intervene.
More to the point, the Supreme Court remains an eight-justice court since the death of Justice Antonin Scalia last February. So even if the court were to split along liberal-conservative lines, there would be a 4-4 tie, and the existing lower court decision would stand.
STEVE INSKEEP, HOST:
But the end of quite a week for voting rights. Federal court decisions have lifted voting restrictions in a bunch of big and sometimes pivotal states, including Texas and North Carolina, among others. We've heard those headlines through the week, and now NPR legal affairs correspondent Nina Totenberg is here to talk us through what it all really means. Hi, Nina.
NINA TOTENBERG, BYLINE: Hi, Steve.
INSKEEP: So from the beginning, what's going on?
TOTENBERG: Well, you remember that in 2013 the Supreme Court struck down a key provision of the 1965 Voting Rights Act, and that was the provision that required mainly Southern states and some other states in local areas in the North to pre-clear voting changes.
INSKEEP: In other words, go to the government and say how they're going to run their elections and make sure that the government was OK and then go on. OK.
TOTENBERG: Right. But the Supreme Court, by a 5 to 4 vote, ruled in 2013 that times had changed and that this coverage formula couldn't be justified. And then, lo and behold, as soon as the court freed these state and local governments from the pre-clearance mandate, Republican legislatures started adopting lots and lots of new regulations that civil rights groups said were targeted at suppressing the minority vote, strict voter ID requirements, getting rid of early voting days, not counting votes if they were cast in the wrong polling place, et cetera. And the Supreme Court, for the most part, allowed those restrictions to remain in place for the 2014 elections.
INSKEEP: Allowed them for 2014, why?
TOTENBERG: Because the court said that the fall of an election year is too late for intervention, that it would only cause chaos and confusion. And, well, this year the shoe is on the other foot because courts have fairly consistently been striking down those restrictions over the last year, culminating with some very big wins for civil rights forces in two federal appeals courts.
INSKEEP: OK, so let's go into some of the details here. In what states have the courts been striking down or limiting the reach of some of these laws?
TOTENBERG: The biggest win was in North Carolina, where a federal appeals court panel unanimously threw out not only the voter ID requirements but a variety of other provisions that the court said were enacted with the intent of making it harder for minorities to vote. The other huge win was in Texas, where the 5th Circuit Court of Appeals, which is perhaps the most conservative federal appeals court in the country, it balked at the Texas voter ID law, ordering the lower court to fashion some sort of a more inclusive voter ID requirement. And then we've got another laundry list of states - Wisconsin, Ohio, Kansas - where a lot of these restrictions have either been softened or thrown out entirely.
INSKEEP: And we can see where this is significant. When you say Ohio and you say North Carolina, Wisconsin, we're talking about swing states here in the 2016 presidential election. But let me ask you, Nina, voter ID supporters have said, come on, what's wrong with asking for a driver's license? And the Supreme Court has agreed with them, hasn't it?
TOTENBERG: Yes, it did in a case from Indiana. But the author of the Supreme Court opinion, Justice John Paul Stevens, and the author of the appellate decision in the same case, conservative Judge Richard Posner, have noted that that case came as a blanket challenge to the law without any evidentiary trial. Both judges have since suggested that the proof offered since then in other states shows how these laws are aimed at suppressing the minority vote.
INSKEEP: OK, so when you get into more details, some of these laws are not allowed anymore. But what are the justifications that states give for them?
TOTENBERG: The states have said that the laws are aimed at preventing voter fraud. And Donald Trump has said that these decisions mean that the election may be rigged. But the courts have pointed out that there's virtually no evidence of so-called in-person voter fraud. That is, you go to the polls more than once or you use someone else's identity. And there is, in the contrary way, plenty of evidence, both historically and now, of attempts to suppress the minority vote.
INSKEEP: OK, so given all of these rulings, how are states like Texas or Wisconsin going to adjust their laws for this fall's election?
TOTENBERG: Well, in Texas, they've already agreed on what they're going to do. They're going to let people go in, file an affidavit under penalty of perjury, say, I am who I am. And then they can vote.
INSKEEP: What about the court battles? Are they over?
TOTENBERG: Oh, no, they're not. But for those states, like North Carolina, that are making an 11th-hour pitch to the Supreme Court asking the justices to block the appeals court ruling, there may not be the votes to do that 'cause, Steve, remember, this is an eight-justice court. And an evenly divided court just leaves the existing decision in place.
INSKEEP: Nina, thanks very much for coming by.
TOTENBERG: Thanks, Steve.
INSKEEP: That's NPR's Nina Totenberg. Transcript provided by NPR, Copyright NPR.