Alexis de Tocqueville famously observed in 1835, “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” That certainly describes the grand struggle over voting rights now unfolding in courtrooms across the country. And when it comes to who can vote and when, a clear message is hard to discern. In recent days, rulings, appeals and motions have pinballed around the system, with the U.S. Supreme Court answering emergency pleas, allowing some changes to take effect and temporarily blocking others, while key appeals head their way. The latest lurch: In a decision emailed out at 5 a.m. Saturday morning, the justices let Texas implement its controversial voter ID law, the nation’s strictest, just two days before early voting begins in the state. Amid the confusion, an important new element has emerged. The breakthrough? Facts. Two powerful judicial opinions—one from a Texas trial judge, another from an esteemed appeals court jurist—and a landmark government study have shed new light on the costs and consequences of restrictive voting laws. They answer some key questions: Are these laws malevolent? (In Texas, at least, yes.) Do they provide a benefit that outweighs their cost? (No.) Do they suppress the vote? (Alarmingly, it seems, yes.) And can we prevent fraud without disenfranchising Americans? (Yes, absolutely.) In a zone foggy with legal rhetoric, these three documents will—and should—live on beyond the 2014 election cycle. They might even help shape a new legal regime to protect voters while protecting against fraud. They’re worth a close read.
Here’s some background: Over the past four years—and for the first time since the Jim Crow era—nearly two dozen states have passed new laws making it harder to vote. The laws range from cutbacks on early voting (Ohio and North Carolina), to a repeal of Election Day registration (Maine), to harsh rules requiring specific types of government identification to vote (states from Texas to Tennessee). Florida even cracked down on nonpartisan voter registration drives, forcing the League of Women Voters—hardly a Trotskyist cell!—to shut down its operations.
In 2011, my organization, the Brennan Center for Justice, calculated that the first wave of these new laws, if implemented, could have made it far harder for five million citizens to vote. At first, the judiciary seemed to recognize that risk. In the run up to the 2012 election, courts around the country routinely blocked or postponed the new voting regulations. On Election Day, few of those disenfranchising laws were in effect.