• Mario Nicolais

Courts cementing election rules for November and the future

With conventions concluded and presidential candidates trading barbs, recent voting rights cases barely show up on the election radar. The impact, both for the coming election and for decades to come, could be monumental. Two decisions in two key swing states could tip the balance of the campaign and lead to sweeping changes across the country.


First, the Virginia Supreme Court struck down a blanket act intended to restore voting rights to felons. An executive order issued by Gov. Terry McAuliffe, a longtime Clinton ally and confidant, most political observers believe the bill would benefit Democrats. By adding more than 200,000 electors to the state’s voting rolls, the change could be a critical difference in a state that voted twice for George W. Bush and twice for Barak Obama.


The decision of the court in Howell v. McAuliffe found no merit in the governor’s argument that his clemency powers allowed him to bypass the state legislative process and grant a blanket restoration of rights. Rejecting the notion, the court not only rebuked the governor for breaching the balance of powers but found any blanket clemency action impermissible. Because the specifics of each individual case must be presented, a blanket clemency violated the state constitution under any circumstances.


A week later, a federal court of appeals struck down several North Carolina voting rights restrictions, including voter ID laws. The law, passed by Republican lawmakers in 2013, would suppress voter turnout among minorities, the state’s NAACP argued, specifically, black voters in the heavily African-American state. Because black voters vote overwhelmingly for Democrats, any law that disproportionately reduces their turnout at the polls is a boon for Republicans. Given Barak Obama’s narrow victory in 2008, the first for a Democrat in decades, and Mitt Romney’s 2-point squeaker in 2012, the state’s swing status has been cemented, and any advantage might change the outcome.


Following similar cases in Wisconsin and Texas, a panel of the 4th Circuit Court of Appeals unanimously declared the law unconstitutional. In North Carolina NAACP v. McCrory, the court found North Carolina’s “new provisions target African-Americans with almost surgical precision.” The decision overruled a lengthy district court opinion upholding the law, noting, “the [district] court seems to have missed the forest in carefully surveying the many trees.”


While the case will be appealed to the U.S. Supreme Court, any emergency action prior to November’s election is unlikely given the current 4-4 split between liberals and conservatives. If the case is eventually heard, it will likely be with a new justice appointed by a new president.


In each of these cases, and in the multitude of others surrounding voting rights, the intersection of law and politics is at its fuzziest. While the stated purpose from each side is always based in a lofty and praiseworthy goal, the driving force is almost always the electoral effect. That is a dangerous game for either side to play. By focusing on the indirect campaign outcome, the direct effect on individual citizens is ignored. Whether McAuliffe unfairly usurps the representatives of Virginia’s residents and inappropriately dilutes their votes by adding hundreds of thousands or new voters, or whether North Carolina Republicans create unbearable burdens for members of the black community, it is always the ones they are supposed to serve who are harmed.


Our elections need rules. But the rules must be made in a way that respects and burnishes our sacred right to vote. Anything else is a travesty of justice.


Read this column from The Colorado Statesman online in ColoradoPolitics.com.

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