The Supreme Court’s Last-Minute Voter Rulings Should Be About Access

We are less than a month from Election Day and courts around the country are issuing a dizzying array of voting rights decisions that will affect the upcoming elections. In Ohio, North Carolina, Wisconsin, and Texas, among others, courts have issued important rulings that will affect how the midterm elections in those states are run.

The U.S. Supreme Court has entered the fray, issuing temporary orders that delay the implementation of some of these rulings. Behind the Court’s decisions has been a concern about changing the election rules too soon before Election Day so as to avoid confusion.

But that misses a key consideration: we should be particularly concerned about last-minute rulings that restrict voter access; rulings that expand the right to vote for the upcoming election, by contrast, are not as problematic.

In Ohio, a federal appellate court struck down the state’s decision to cut early voting from 35 to 28 days, but the Supreme Court put that ruling on hold, effectively allowing the state to reduce the early voting period.

In North Carolina, a federal appellate court ruled part of the state’s 2013 restrictive voting bill unconstitutional, but the Supreme Court again put that ruling on hold because of the last-minute nature of the ruling.

The situation was slightly different in Wisconsin, with the federal appellate court upholding the state’s voter ID law before the Supreme Court, last night, stayed that decision. Wisconsin therefore may not implement its strict voter ID law for the upcoming election.

The difference between these cases is that in Ohio and North Carolina the federal appellate courts issued rulings that would expand voter access by striking down new restrictive state laws, while in Wisconsin the court’s decision upholding the voter ID law would make it harder to vote. Regardless of the ultimate merits of these decisions, it is problematic when a court’s decision, issued so close to the election, restricts voter access.

A last-minute decision to expand voter access vindicates the constitutional right to vote for the upcoming election. No one will suffer a constitutional harm if some voters are allowed to cast a ballot even if a new state law might otherwise have prevented them from voting. This is because they could presumably vote under the state’s old rules, and no one thinks previous elections were unconstitutional or illegitimate. The constitutional harm to the state in having to wait one more election cycle to implement the law is negligible. And a last-minute decision expanding voter access is unlikely to confuse anyone; when in doubt, the state should allow the individual to vote.

By contrast, a ruling that limits voter access so close to an election risks disenfranchising voters who otherwise would be able to vote. This presents a constitutional injury that has no easy fix – if it turns out that the law restricting them from voting is unconstitutional, they have already suffered the injury by not being able to vote in this election. If, on the other hand, the state is eventually allowed to implement its law, then it is no big deal to wait until the next election. The state operated its previous election without the new rules, so there’s no pressing need to rush to implement them now so close to Election Day.

Courts should wait to issue a decision upholding a state’s new voting law within weeks of the election if that law places limits on the right to vote. But if a court sees a constitutional violation in a new state law that would infringe the right to vote, it should decide the case as soon as possible so that voters do not suffer a denial of their right to vote in the upcoming election. A state can wait an election cycle to implement its law; a voter should not have to sit out an election. The Supreme Court should therefore keep in place a lower court decision invalidating a new voting law that restricts voter access and only stay a decision that upholds a new rule that places limits on voting.

This brings us to yesterday’s federal trial court ruling that Texas’s new voter ID law violates the constitutional right to vote, the Voting Rights Act, and is, in effect, an unlawful poll tax. The state plans to appeal this decision to the federal appellate court and ultimately the Supreme Court within the next few weeks so that it can use its voter ID law this November.

If the polestar is voter access, then these courts will reject the last-minute challenges. The trial court, in a detailed 147-page opinion, found that Texas’s voter ID law would disenfranchise a sizable number of individuals – up to 4.5 percent of registered (not just eligible) voters. The appellate courts can, during 2015 when there is no pending election, decide the substantive merits of this dispute. With only a few weeks until Election Day, however, the courts should let this decision stand because it enhances expansive voter access by stopping the state from implementing a law that would disenfranchise some voters.

The constitutional right to vote is the most fundamental, foundational right in our democracy. Courts should not restrict that right, especially just before Election Day. They should instead issue orders that expand voter access for all members of our society.

Professor Joshua A. Douglas of the University of Kentucky College of Law is a leading election law expert. His research focuses on the constitutional right to vote, election administration, judicial interaction with the election process, and post-election disputes.