Welcome to the Future of Voting Rights

For months before the November election, battles raged in Pennsylvania over whether the state would require voters to show a state-issued photo ID in order to cast a ballot. Many voting rights activists saw the state's voter ID bill, passed by a Republican legislature and signed by a Republican governor, as an attempt to tamp down turnout among nonwhite and poor Pennsylvanians. Estimates of just how many people lacked ID ranged tremendously, but it was clear that nonwhite voters would be disproportionately affected by the new requirement. Mike Turzai, the state house majority leader, seemed to only confirm the worst when he said publicly that the new law would “allow Governor Romney to win the state of Pennsylvania.”

But Pennsylvania is not a state with a long history of voter suppression. It wasn’t mentioned in Section 4 of the Voting Rights Act, which required certain states and counties to get new election laws “precleared” by the feds. In those states, controversial measures often never made it into law because the Department of Justice would knock them down. In Pennsylvania’s case, lawyers would have to battle it out in the courtroom. Even then, however, there were questions: Would civil rights groups bring a suit based on federal laws that prohibit discrimination? Or would they sue under the auspices of the Fourteenth Amendment, which guarantees equal protection under the law?

Instead, civil rights and voting rights groups argued that the voter ID law violated the state’s constitution—which, unlike the federal one, specifically guarantees the right to vote. When Commonwealth Court Judge Robert Simpson finally decided, in early October, to enjoin the ID requirement, he did so out of concern that it would disenfranchise voters. His decision was a temporary one, however, and lawyers have been back in court this week arguing over the final status of the law. Once again, the decision will be based on whether the voter ID requirement violates Pennsylvania’s constitution, creating an unfair burden around a key right for citizens. The arguments have focused on the number of voters who might be disenfranchised and whether the state has adequately helped those who need IDs to get one.

State constitutions may become an increasingly prominent part of the fight for voting rights. Last month, the U.S. Supreme Court decided to gut Section 4 of the Voting Rights Act, the provision that determined which states required preclearance. That means until Congress can find a new formula (and they move rather slowly), civil rights lawyers will have to focus on the courtroom to fight restrictive laws. One advantage of preclearance was that it was preemptive—activists did not have to wait for voters to be disenfranchised before they could get a law halted. Without Section 4, most suits will be hard to argue before damage is done. For instance, the U.S. Supreme Court found in 2008 that Indiana’s voter ID law did not violate the Fourteenth Amendment, in part because it had not yet been in effect for an election.

That’s why some are turning to suits arguing that new voting restrictions violate state constitutions. Unlike the U.S. Constitution, all 50 state constitutions have some direct guarantee of the right to vote. These guarantees often offer significantly broader protections than federal law. For instance, Pennsylvania specifically guarantees “all elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.“ Many states offer the specific criteria required to vote—usually being 18, having U.S. citizenship and living in the state for a specific amount of time. The Missouri Supreme Court knocked down a similar voter ID law in 2006, finding that it violated the state constitution, and last year, shortly before Pennsylvania's law was litigated, civil rights groups in Wisconsin successfully killed a voter ID bill arguing it violated the state’s guarantee that “[e]very United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district.” (One of the Wisconsin cases has since been overturned, but another decision in a case that presented more evidence of voter disenfranchisement still stands.

In most state constitution cases, state judges connect articles of a state constitution with analogous measures in the federal constitution. But there’s no federal equivalent for the state’s right to vote. According to Josh Douglas, a law professor at the University of Kentucky who just produced the first comprehensive paper on the right to vote in state constitutions, judges can choose to take an “independent reading” based on their own state history, rather than on legal decisions made outside of the state. However plenty of state judges still choose to follow the precedent set in federal cases, whether protection for voting rights has been relatively weak in recent years. While Douglas has called for more judges to take independent readings when it comes to voting rights, he says there’s little evidence of a trend towards such an approach. In the Pennsylvania case, lawyers spent months researching the state courts’ history on voting rights and examining other states with similar constitutional language before bringing suit.

Robert Williams, a law professor who oversees the Center for State Constitutional Studies at Rutgers University, says there are a lot of variables at play in cases like this. “It depends number one on what the law is in the state. It also frankly depends on the predilection for the judicial philosophy of the judges,” he says, acknowledging that such suits will be “the go-to avenue” for lawyers fighting voting restrictions. Williams himself filed friend-of-court briefs in the Pennsylvania voter ID case,

In addition to calling for a federal constitutional amendment enshrining the right to vote, activists have also started pushing judges to use emergency injunctions to postpone restrictive laws from going into effect before elections—such as the tool that postponed the Pennsylvania law. “The judges are going to have to understand that they need to use their preliminary injunction power, because they are now substituting for the Department of Justice in stopping bad discriminatory voting changes,” says Penda Hair, a co-director of the Advancement Project, a civil rights group that’s helped bring suit against a number of voting requirements including Pennsylvania’s. Hair, like many advocates, is quick to note that none of these lawsuit options provides anywhere near the level of protection that Section 4 of the Voting Rights Act did. Asking for an injunction before a law has had any impact is no easy task.

“I think we have to call on the judges and educate the judges that this is now their job and they have to be willing to enjoin discriminatory voting practices and not wait and see whether voters are turned away,” Hair says.

State-level judges tend to be elected, rather than appointed for life the way federal judges are, and they can be more sensitive to public opinion. That can go either way for advocates, depending on how the debate is playing out. However, Douglas says it’s unlikely that the loss of preclearance would directly and overtly change a judge’s approach, but instead could still affect decisions “on a subconscious level”—in other words, while judges wouldn’t likely say they need to change their position in light of the changes to the Voting Rights Act, the new voting rights landscape may still influence their thinking.

“It’s very hard to tell if the state courts will be more friendly,” says Williams. “That's hard to predict. But they're certainly going to get these cases.”

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