I meant to write about this last week, but better late than never: Stateline‘s Josh Grovum wrote an analysis of the judicial and political struggle over voter ID laws under the provocative headline: “Are Voter ID Opponents Winning the Battle but Losing the War?”
It’s a good question. Quite naturally, voting suppression opponents, outgunned in many legislatures thanks to the 2010 GOP landslide, have focused on keeping voter ID laws (and similar “war on voting” measures) from taking effect before November 6. And they’ve done a remarkably good job at that, particularly in battleground states.
But as Grovum suggests, voting rights advocates are not exactly winning big constitutional challenges to such laws:
The recent rulings have done little to alter the legal basis that has allowed comparable laws in Georgia and Indiana to stand for years. In Pennsylvania, for example, the judge ruled that state officials did not have enough time to implement the new voter ID law before Election Day. And a federal court ruled that Texas’s specific law would place a disproportionate burden on minority voters, but it left the door open for a different voter ID measure.
For the most part, opponents have been unable to win the crucial argument: That voter ID laws are an unconstitutional infringement on voting rights.
“The long-term trend is for courts to uphold most of these changes and to leave the issues to the political process,” says Rick Hasen, a professor at the University of California, Irvine, and the author of the recent book The Voting Wars. “Most courts are holding that these laws are, in fact, constitutional.”
And looming in the background are a variety of suits that will soon give the U.S. Supreme Court the opportunity to reconsider the constitutionality of the bedrock of all challenges to voter suppression: the Voting Rights Act of 1965, and particularly its Section 5 provisions requiring jurisdictions with a history of discriminatory policies (mostly, but not exclusively, in the Deep South) to seek “pre-clearance” of legislative changes affecting minority voting interests from the U.S. Justice Department before they are implemented.
As Grovum notes, the best immediate tactic for Democratic fighting voter suppression policies is to retake control of legislatures enacting such legislation. And in one state, Minnesota, voters themselves are judging restrictions of the franchise, and voter ID proponents are rapidly losing their original advantages:
The battle for public opinion is also playing out in Minnesota, where a voter ID constitutional amendment will be on the ballot this November. The GOP-controlled legislature saw its first attempt vetoed by Democratic Governor Mark Dayton in 2011. This year, lawmakers bypassed him to put it directly before voters.
As Election Day nears, there’s evidence that increasing partisanship over voter ID has taken its toll. In Minnesota, voter ID laws once enjoyed nearly 80 percent support, University of Minnesota political science professor Larry Jacobs says, but that number has plummeted. Jacobs sees a similar dynamic playing out in other states.
A Public Policy Polling survey released this week showed an 8-point advantage for supporters, down from 24 points in June. And a recent Minneapolis Star Tribune poll pegged support at 52 percent statewide, with 44 percent saying they’d vote against it. The partisan divide was pronounced: Three out of four Democrats oppose it, while nearly 90 percent of Republicans support it.
So there’s at least some evidence that the effort to make voter ID laws a “nonpartisan” goo goo issue are failing. In that respect, voter suppression fans may be losing the war as well as the battle.