Trump to Take Office with Enormous Power to Shape Future U.S. Policy on Voting

Saturday, December 03, 2016
(photo: Chip Somodevilla, Getty Images)


By Michael Wines, New York Times


After an extraordinarily contentious election, crucial elements of the rules that determine how Americans vote will be under assault from conservatives and facing legal challenges heading toward the Supreme Court as Donald Trump prepares to become president.


Trump’s claims of a “rigged” election — made before he won — and his false declaration after his victory that “millions of people” voted illegally for Hillary Clinton made headlines.


They also amplified long-standing Republican claims that rampant voter fraud justified a welter of state laws making it more difficult to register and vote. Democrats say the laws are not about combating fraud but about suppressing the vote of minorities and other Democratic-leaning constituencies.


Trump will have enormous power to shape future policy on voting.


“The last time we had a national government that was as hostile to the protection of minority voting rights as we may have with this president was probably near the end of the first Reconstruction” after the Civil War, said Pamela S. Karlan, a Stanford University law professor, who was a deputy assistant attorney general under President Barack Obama until 2015.


“There are still strong Republican protectors and champions of voting rights,” she said. “But they don’t seem to have the whip hand in their own party.”


Such concerns could prove overstated. Beyond warnings of fraud, Trump has offered little specific about his views on voting rights. Four Trump transition officials did not reply to emailed requests for comment.


One conservative scholar of election law, Hans A. von Spakovsky, a senior legal fellow at the Heritage Foundation, called the worries “way overboard.”


“The emphasis may be a little different,” he said. “But this idea that when Republicans come in, they’re suddenly going to stop enforcing the Voting Rights Act and other laws — the evidence doesn’t bear it out.”


Trump will take office at a pivotal moment in a battle over the rules governing voting and elections, one in which voting-rights advocates seemed to be gaining an upper hand.


Several potentially decisive federal court rulings on voting rules and redistricting, most favoring voting-rights advocates, now appear bound for a Supreme Court whose ideological balance is in Trump’s hands. Enforcement of the Voting Rights Act of 1965 (pdf) , a linchpin of some of those cases, will fall to a Justice Department whose likely attorney general, Sen. Jeff Sessions, R-Ala., is viewed with deep suspicion by civil rights advocates.


One Trump adviser, Kris Kobach, the Kansas secretary of state, is among the most aggressive national crusaders for voting restrictions.


Entering a meeting with Trump last week, Mr. Kobach was photographed carrying a sheaf of policy recommendations. The visible text proposed to “Draft Amendments to the National Voter” — an apparent reference to the 1993 National Voter Registration Act, the “motor voter” law that has come under sharp attack from Republicans.


The law prohibits states from purging voters from the rolls for technical reasons like moving within a district, and imposes a waiting period and other requirements to remove voters.


Conservatives say the requirements keep ineligible voters on the rolls and promote fraud. Democrats say the law prevents partisan purges of poor and minority voters.


Kobach, who once suggested that Obama was plotting to replace U.S. voters with socialist-leaning legalized immigrants, is the leading advocate of requiring everyone to present proof of citizenship when registering to vote instead of swearing an oath. Critics say the poor are far less likely to have those documents, and the costs of obtaining them essentially amount to a poll tax, which has long been unconstitutional.


But some actions that voting-rights advocates call regressive actually would improve election integrity and efficiency, von Spakovsky of the Heritage Foundation said. Requiring citizenship documents, he argued, would reduce fraud. And he said Obama’s Justice Department has failed to enforce the part of the motor-voter law that requires election officials to cull voter lists of people who have died or moved.


A Justice Department while Trump is in office is likely to press on both those fronts, he said.


In general, he noted, Obama’s Justice Department has filed far fewer lawsuits to enforce the Voting Rights Act than the department under President George W. Bush, where von Spakovsky worked on civil rights cases.


“They’ve been sitting on their rumps for eight years,” he said.


Others say the department’s Civil Rights Division in the Bush era was sometimes a hostile environment — an inspector general’s report noted that one leader compared voting-rights lawyers to mold spores — and that Obama-era lawsuits, while fewer in number, have had national rather than local impacts.


Trump’s greatest influence over election policy may lie in the Supreme Court, where he has pledged to nominate a reliable conservative to the seat vacated by Justice Antonin Scalia, who died in February.


At least two major voting lawsuits against the Texas and North Carolina state governments seem likely to be appealed to the court. In both, federal courts of appeals this summer voided or modified Republican laws requiring voters to produce photo IDs, saying they disproportionately reduced minorities’ turnout.


The court has upheld photo ID requirements before. But the new cases marshal far more evidence of their outsize effect on minority voters. The North Carolina ruling concluded that the state intentionally imposed restrictive rules “with almost surgical precision” to suppress African-American voters.


Whether the Supreme Court will agree is an open question. Many legal experts say the eight justices appear evenly split over whether the Texas and North Carolina laws violate the Voting Rights Act or the Constitution. Should the cases be heard after a Trump nominee is approved, legal analysts agree, the chance that the laws will be reinstated will markedly increase.


“If it is someone whose stance is like Justice Scalia, you should expect a reversal” of the appeals courts, said Ellen D. Katz, a former Justice Department lawyer and a law professor at the University of Michigan. “Every signal they’ve given us to date is that they would overturn the decisions.”


Yet some analysts are less certain. In recent cases, for example, courts have broadly agreed that ID laws must be written so that people who cannot reasonably obtain required identification cards still get an opportunity to vote.


“Courts are going to insist on a safety net” for voters without proper IDs, said Edward B. Foley, a professor and director of the Election Law Project at Ohio State University’s law school. “Even conservative appeals judges are buying into that.”


The Supreme Court also seems certain to address a second important question: whether majority parties in state and local governments can gerrymander political maps during redistricting, redrawing boundaries in ways that solidify their hold on power.


Gerrymandering to dilute minority voters’ power has long been illegal. But while justices have said partisan gerrymandering is wrong, they have never decided whether they can outlaw it. Three partisan gerrymandering cases are moving toward hearings in a Supreme Court that some experts say could be poised to rein in the tactic, even with a Trump appointee.


Other policy questions remain unanswered, Katz and others said, including whether the Justice Department will pursue voting rights lawsuits that the Obama administration started or joined. Nor is it clear how vigorously it will enforce Voting Rights Act clauses that remain.


The 2013 ruling ended the department’s power to oversee voting and election rules in jurisdictions with histories of racial bias. Advocacy groups and pro bono lawyers have assumed some of those watchdog duties. But whether the agency will enforce remaining clauses of the law by bringing or joining lawsuits like those in the Texas and North Carolina cases is unknown.


“The consequences here will be in what they don’t do as well as what they affirmatively do,” Katz said. Should enforcement taper off, she said, “it’s not clear that the private bar can step up and do all the things the Justice Department has been doing.”


Still, officials at voting-rights organizations said they hope to build a bipartisan consensus on issues like automatic voter registration and restoring voting rights to ex-felons where some Republicans support reforms.


Beyond that, they said, they will regroup and decide what causes are most important.


One leading organization, Common Cause, will renew efforts to block any resurgence of state or federal laws making registration or voting more difficult. “There’s a concern at the federal level that there could be the introduction of laws to make photo IDs a national requirement or to require documentary proof of citizenship at registration,” said Allegra Chapman, the group’s director of voting and elections.


It is a sharp turnabout from the scenario most expected would unfold under a Clinton presidency.


“What’s the phrase? ‘These are the times that try men’s souls,'” said Lloyd Leonard, director for advocacy at the League of Women Voters in Washington. “We’ll be playing defense in a number of areas.”


To Learn More:

Hacking Threats, Voting Restrictions, and Trump’s Call for Poll Monitors Generate Election Day Concerns (by Christina A. Cassidy, Associated Press)

Supreme Court Voting Rights Decision Simplified—A Republican Dream Come True (by David Wallechinsky, AllGov)


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