Identity Crisis by Linda Greenhouse
The Supreme Court’s Identity Crisis on Voting Rights
A thought experiment: Suppose the 50th anniversary of the march for voting rights in Selma, Ala. — Bloody Sunday at the Edmund Pettus Bridge — had fallen on March 7, 2013 rather than the week before last. Eight days before my imaginary anniversary, the Supreme Court heard arguments in Shelby County v. Holder. Four months later, the 5-to-4 decision in that case cut the heart out of the very victory that the Selma marchers had sacrificed to achieve, the Voting Rights Act of 1965.
Would the court really have had the nerve to do it, with the memories of the march’s veterans still echoing for the world to hear and with President Obama making perhaps the best speech of his presidency? In the full glare of that public spotlight, would there really have been no member of the Shelby County majority who might have found his way (yes, the five were all men) to a different result?
Perhaps Chief Justice John G. Roberts Jr., whose majority opinion proclaimed that there was no longer sufficient justification for federal oversight of states that not so long before had specialized in finding creative ways to keep black citizens from the polls? Not too likely, given that he invited and set up the Shelby County case with his opinion in a case back in 2009. Or Justice Anthony M. Kennedy, who always seems most comfortable when, by his lights, he’s on the right side of history? Possibly — but states’ rights sound a siren call for him that he has rarely resisted. Not Justice Antonin Scalia, who during the Shelby County argument mocked the fact that both houses of Congress had recently reauthorized the Voting Rights Act by overwhelming majorities — thus proving, according to the justice, that Congress was in the grip of political correctness? Justice Samuel A. Alito Jr.? Not a chance. Justice Clarence Thomas? Sigh.
I’ve talked myself out of my thought experiment, but not out of some residual faith in the possibility of redemption. The Supreme Court now has a chance to set something right in the voting-rights area. On Friday, the justices are scheduled to consider whether to hear a challenge to Wisconsin’s strict voter ID law, which a federal appeals court upheld last fall. It’s likely that the justices will add the case to their docket, given that a few weeks before Election Day, the court granted a stay of the appeals court’s decision (over the dissenting votes of Justices Scalia, Thomas and Alito).
Republican-headed states have been in such a frenzy in the past few years to enact and enforce voter ID laws that things got pretty crazy at the Supreme Court on the eve of last November’s elections. Emergency requests for stays seemed to be arriving daily. Justice Ruth Bader Ginsburg stayed up all night to write a strong dissenting opinion when the court permitted the Texas voter ID law to remain in effect.(The Texas law had been blocked by the Voting Rights Act, and Gov. Rick Perry had put it back into operation within hours of the Shelby County decision.)
The challenge to the Wisconsin law is the first of the current round of cases to reach the Supreme Court after a full trial and appellate review; the appellate process is still continuing in the Texas case, Veasey v. Abbott, and in a case from North Carolina, League of Women Voters v. North Carolina. The Wisconsin case, Frank v. Walker, is worth attention on multiple levels. For a start, there is the question of timing. The window is closing with surprising speed for the Supreme Court to say something definitive about voter ID laws before the 2016 election. Cases the justices accept from now until the end of the current term won’t be heard until next fall; hot-button cases heard then probably won’t be decided until the late spring or early summer of 2016. The time to start thinking about the rules under which the 2016 election will be conducted, in other words, is now. . .
The claim that photo ID was necessary to deter or catch voter-impersonation fraud was, Judge Posner wrote, “a mere fig leaf for efforts to disenfranchise voters likely to vote for the political party that does not control the state government.”
He added: “As there is no evidence that voter-impersonation fraud is a problem, how can the fact that a legislature says it’s a problem turn it into one? If the Wisconsin Legislature says witches are a problem, shall Wisconsin courts be permitted to conduct witch trials?”
http://www.nytimes.com/2015/03/19/opinion/the-supreme-courts-identity-crisis-on-voting-rights.html?hp&action=click&pgtype=Homepage&module=c-column-top-span-region®ion=c-column-top-span-region&WT.nav=c-column-top-span-region&_r=0
