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Judiciary is key in battles over voting rights

Judiciary is key in battles over voting rights

August 10th, 2018 by Carl Leubsdorf in Opinion Columns

The Senate is preparing to consider Brett Kavanaugh's Supreme Court nomination at a time when recent decisions in Florida and Iowa have again illustrated the judiciary's importance in resolving increasingly partisan battles over voting rights.

In Florida, a federal judge nominated by President Barack Obama ruled unconstitutional a state official's effort to ban early voting by college students. In Iowa, a state judge—first named by a Democratic governor and then re-elected by voters—suspended enforcement of some newly enacted Republican restrictions on voting.

It's possible Republican judges might have ruled differently, and appeals are likely in both instances. If so, they would join the growing number of voting cases headed for higher courts at a time when President Donald Trump's success in reshaping the federal judiciary threatens to reverse a half century of federal courts generally championing expanded voting.

Last June, Trump's first Supreme Court appointee joined four other GOP nominees in sanctioning Ohio's purge of voter registration rolls. They did so despite evidence it would inordinately affect areas with large numbers of minority voters. At least six other states have undertaken similar purges.

Future candidates for Supreme Court review include the long-running challenge to Texas' restrictive voter ID law, which a three-judge panel of the 5thCircuit Court of Appeals upheld in April; several challenges to congressional and legislative redistricting; and a multi-state suit against the Trump administration's plans to include a citizenship question in the 2020 Census that could reduce the legislative and congressional representation of a number of big states, including Texas.

According to a recent nonpartisan ProPublica study, state legislatures have enacted more than 500 voting measures since 2016, including some laws to make voting and registration easier and some to make it harder. Democrats won one major judicial victory when the Pennsylvania Supreme Court implemented a new congressional districting map that replaced a legislative plan ensuring a GOP majority.

But most pending legal battles involve GOP-driven restrictions. Five more states, Arkansas, Iowa, Missouri, North Dakota and Texas, passed new laws requiring voters to provide identification to vote, bringing the total since 2010 to 34, ProPublica said.

In New Hampshire, a trio of Republican judicial appointments eased the way for enacting a new law aimed at curbing student voting by requiring voters to have in-state driver's licenses and car registrations.

Republican Governor Chris Sununu signed the new law after a 3-2 advisory opinion from the state Supreme Court, bolstered by his appointment of two new judges and his elevation of a third to chief justice, OK'd the GOP legislature's latest version. The campaign to curb student voting picked up momentum after narrow 2016 Democratic Senate and presidential victories that some GOP critics falsely attributed to illegal votes by out-of-state students.

The Florida case reversed Republican Secretary of State Ken Detzner's 2014 ruling that the legislature's expansion of early voting sites to include "government-owned community centers" did not include the student union building on the campus of the University of Florida.

U.S. District Judge Mark Walker said Detzner's ruling "reveals a stark pattern of discrimination" against younger voters.

The Iowa case blocked several restrictive provisions in a comprehensive law Republican legislators passed last year. Polk County District Court Judge Karen Romano said the state "suggested no real threat to the integrity of Iowa's voting system." She ordered restoration of a 40-day early voting period, which the law cut to 29, and blocked provisions making it harder to get absentee ballots.

Secretary of State Paul Pate, a Republican, said the state would appeal to the Iowa Supreme Court, which has a 4-3 GOP majority. Judge Romano was appointed by Democratic Gov. Tom Vilsack in 2001 and retained in 2016 with nearly 75 percent of the vote.

Since minority and young voters boosted Obama in 2008, Republicans have sought to reduce early voting periods, eliminate polling places in minority areas and enact voter ID laws. Some states have less restrictive laws than Texas, which requires driver's licenses, passports, concealed weapons permits or other government-issued IDs, but permits those unable to get them to submit affidavits explaining why.

Helping GOP efforts has been a 2013 Supreme Court decision eliminating a key provision in the 1965 Voting Rights Act, requiring states with a history of discrimination like Texas to get Justice Department pre-clearance of voting changes. Chief Justice John Roberts has expressed reservations about the landmark voting rights law since he was a young Justice Department attorney in the 1980s.

Also, the Trump Justice Department has reversed several prior positions, supporting the Texas voter ID law the Obama administration called intentionally discriminatory.

All signs are that the influx of Trump-nominated judges will slow or reverse the federal courts' role as the chief protector of voting rights. Kavanaugh's confirmation will likely bolster that trend.

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