This column by ACRU Policy Board member Hans von Spakovsky was published July 25, 2016 by Conservative Review.
The same week that Republicans were formally nominating their 2016 presidential candidate in Cleveland, two different courts issued decisions, one positive and one negative, that may affect the security and integrity of the November election in Virginia and Texas. The Virginia case threw out the blanket restoration of felon voting rights, while the Texas case found that the state’s voter ID law violates the Voting Rights Act.
On July 22 in Howell v. McAuliffe, the Virginia State Supreme Court ruled four to three that Governor Terry McAuliffe had acted outside of his constitutional authority (sounds like Obama) when he granted a blanket restoration of voting rights to 206,000 felons, of whom over 11,000 have already registered to vote.
A group of state Republican Virginia legislators led by Speaker of the Virginia House of Delegates William J. Howell, as well as some registered voters, challenged the executive order McAuliffe issued on April 22. The court said that order inverted the constitutional rule in Virginia. According to the court, the Virginia constitution sets out the rule that no one “who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor.” But McAuliffe changed this “rule-exception sequence” to reframe this constitutional provision to instead say that no one “who has been convicted of a felony shall be disqualified to vote unless the convicted felon is incarcerated or serving a sentence of supervised release.”
The court was faced with the question of whether the governor had suspended the “general principle of voter disqualification” in the Virginia constitution and replaced it “with a new voter qualification that has not received the ‘consent of the representatives of the people.’” In deciding that question against McAuliffe, the court was guided by the “backdrop of history.” As the court said:
Never before have any of the prior 71 Virginia Governors issued a clemency order of any kind – including pardons, reprieves, commutations, and restoration orders — to a class of unnamed felons without regard for the nature of the crimes or any other individual circumstances relevant to the request. To be sure, no Governor of this Commonwealth, until now, has even suggested that such a power exists. And the only Governors who have seriously considered the question concluded that no such power exists.
McAuliffe claimed that his clemency power was “absolute” (channeling Obama again?), but “[w]e respectfully disagree” said the court. The Commonwealth of Virginia, the home of great American statesmen like George Washington, Thomas Jefferson, and James Madison, has, as the court said (in language that should be read by every federal judge in the country), a “deeply embedded” legal tradition of a “cautious and incremental approach to any expansions of the executive power.” The “concerns motivating the original framers in 1776 still survive in Virginia” including “their skeptical view” of the “unfettered exercise of executive power.”
The court then proceeded to give McAuliffe a historical lecture on the views of the “Framers of the Commonwealth” — including George Mason — on separation of powers and how fearful they were of any executive having the power to suspend laws, as had been done by a succession of English monarchs. That is why there is an anti-suspension clause in the Virginia constitution.
Our Framers considered it to be “an essential pillar of a constitutional republic.” The lack of such a provision in the federal Constitution is one of the reasons that Patrick Henry and other Virginia delegates to the Virginia Ratification Convention of 1788 voted against the Philadelphia draft. But Virginia “has steadfastly held to the separation-of-powers principle first recognized in its 1776 Virginia Declaration of Rights.” The anti-suspension provision “has been repeated, without alteration, in all subsequent versions of the Constitution of Virginia.” McAuliffe’s assertion of power “has the attributes of an ultra vires assertion of the suspending power that has been forbidden by our Constitution since 1776.”
The court also cited the prior action of Virginia’s former Democratic governor, Tim Kaine, who is currently the state’s U.S. senator and has just been named by Hillary Clinton’s as her vice presidential pick. In 2010, Kaine was asked to do exactly what McAuliffe did; yet his counsel, Mark Rubin, issued a letter concluding the clemency authority of the governor in the Virginia constitution “did not authorize a ‘blanket use’ of the restoration power to ‘benefit unnamed individuals.’”
The better understanding of the provision according to Rubin was that the power could be exercised only “in particular cases to named individuals for whom a specific grant of executive clemency is sought.” The court considered it significant that since the 1980s, at “least 69 resolutions and bills” had been offered in state legislative sessions to amend this provision without success: “all have failed to pass the General Assembly.”
McAuliffe couldn’t really dispute the history recited by the court. Instead, he argued that, “his 71 predecessors failed to appreciate the unlimited nature of their executive powers in such matters.” Despite his claim of “unlimited” power, however, the court ordered the state elections department to cancel the voter registration of all felons unlawfully registered as a result of the governor’s action by August 25.
McAuliffe showed his contempt for the court and Virginia legal history and precedents by immediately issuing a press release accusing the court of making Virginia “an outlier in the struggle for civil and human rights.” He announced that he would “continue to sign orders” restoring voting rights until he had taken care of all 206,000 felons, revealing that his office will still not be conducting an individualized review of each felon’s record.
Unlike in Virginia, the U.S. Fifth Circuit Court of Appeals in Beasley v. Abbott issued a regrettable and unjustified decision on July 20 against Texas’s voter ID law that will allow the district court judge to “remedy” the supposed (and really nonexistent) “problems” with the requirement.
Beasley v. Abbott, which was brought by the U.S. Justice Department and a host of its political allies, has a long and complicated procedural history. In 2011, the Texas legislature passed SB 14, a common sense requirement that voters show a photo ID when voting. I actually testified before the state senate in favor of an ID requirement to the great annoyance of Democratic senators who opposed any improvement in election integrity in a state with a long history of election fraud (think ’Landslide Lyndon’ Johnson and Ballot Box 13 that, as the dissent points out, “seems to have been forgotten” by the majority opinion). They subjected me to their version of a Texas barbecue with very hostile but ill-informed questioning.
This is a law that, as subsequent elections have shown, and contrary to the misinformed judgment of the appeals court, has not kept any voters out of the polls and has not diminished turnout. To satisfy the law, you can use a Texas driver’s license, a military ID, a U.S. citizenship certificate with a photo, a U.S. passport, a Texas gun carry license, or a photo ID issued by the Texas Department of Safety that you can obtain for free (with no fee for a Texas birth certificate either if you need one to get the ID).
There are numerous exemptions, such as for those over 65, who can vote early by mail, or for those who are disabled or have a religious objection to being photographed. And you can still vote even if your name on the ID differs from your registered name as long as it is “substantially similar” and you sign an affidavit that you are the same person as the registered voter.
In 2014, a relatively new federal judge appointed by Barack Obama held that the law was “enacted with a racially discriminatory purpose, has a racially discriminatory effect, is a poll tax, and unconstitutionally burdens the right to vote.” Her decision was issued so close to the November election, however, that a three-judge panel of the Fifth Circuit stayed her decision so voters would not be confused by a rule change just before the election. The U.S. Supreme Court refused to lift the stay, so the law, which had previously been in effect in state elections, remained in effect.
The case ended up before the full Fifth Circuit after a subsequent decision on the merits by a Fifth Circuit three-judge panel that tossed out all of the district court’s findings except for one — that the law had a discriminatory effect. Unfortunately, the full Fifth Circuit also found that the law had a discriminatory “disparate” effect under Section 2 of the Voting Rights Act and remanded the case to the district court to fashion a “remedy” for the handful of Texas voters who supposedly have trouble getting the free ID the state provides to anyone who doesn’t already have an ID. In her original opinion, the district judge had thrown out the entire voter ID requirement for all voters.
The appeals court threw out the district judge’s ruling that the law was passed with a discriminatory purpose, because she “mistakenly relied…on speculation by the bill’s opponents about proponents’ motives (rather than evidence of their statements and actions),” although the court claimed there was “more than a scintilla” of evidence of a discriminatory purpose. The appeals court also faulted the district judge for relying “too heavily on the evidence of State-sponsored discrimination dating back hundreds of years” rather than more recent history of discrimination (although the dissent challenges the majority’s opinion of what is “recent”). The district judge was directed to “reexamine” the evidence on discriminatory purpose.
In a stirring dissent joined by four judges, Edith Jones wrote that requiring voter ID is a “reasonable requirement widely supported by Texans of all races and members of the public belonging to both political parties.” Jones faulted the majority for fanning “the flames of perniciously irresponsible racial name-calling,” saying that “inflammatory and unsupportable charges of racist motivation poison the political atmosphere and tarnish the images of every legislator, and the Texas Lt. Governor and Governor, who supported” the voter ID law.
According to the dissent, “the multi-thousand page record yields not a trace, much less a legitimate inference, of racial bias by the Texas Legislature.” Indeed says Jones, “why would a racially biased legislature have provided for a cost-free election ID card to assist poor registered voters — of all races — who might not have drivers’ licenses? Yet the majority emulates the clever capacity of Area 51 alien enthusiasts who, lacking any real evidence, espied a vast but clandestine government conspiracy to conceal the ‘truth.”
There was no evidence in the case whatsoever that the state somehow discriminates against the very few Texans who don’t already have an ID…
The dissent pointed out that 95.5 percent of Texas voters already have photo IDs, so only 4.5 percent had to obtain the free ID to vote. Yet “[d]despite extraordinary efforts to find voters ‘disenfranchised’ by [the law], the DOJ could not uncover any, and no representative of the plaintiff organizations found any of their members unable to vote because of [the law].” The entire case was based on the speculation that the 4.5 percent of Texans who don’t already have an ID “would find it difficult to acquire” the free ID issued by the state and that travelling to DMV offices to get the IDs “could be time-consuming, burdensome and interfere with hourly work schedules.” The difference between the races in not having ID, which the majority thought was a major problem, was statistically insignificant: the majority cited Texas’s expert who found that 4 percent of whites, 5.3 percent of blacks, and 6.9 percent of Hispanics lacked an ID. On such minor differences was a federal case made.
Why would that difference violate the Voting Rights Act even if it is true? Such a slight difference supposedly means the law has a disparate impact because those who don’t have ID (the court assumed) “overwhelmingly include the poor (of all races).” According to the dissent, there was “expert testimony unsupported by any hard data that ‘the poor’ are less likely to have” the documentation needed to get an ID. This apparently violates Section 2 of the VRA, but as the dissent says, that conclusion “misconstrues the law, misapplies the facts, and raises serious constitutional questions.”
There was no evidence in the case whatsoever that the state somehow discriminates against the very few Texans who don’t already have an ID, including blacks or Hispanics, and who apply to get a free photo voter ID card. That process is equally open to anyone. The majority is “micromanaging a facially neutral state law implementing a Supreme Court-approved purpose in order to eliminate disparate impact (in types of qualified IDs) not caused by the law itself.”
As the dissent concludes, this decision:
[M]oves us another step down the road of judicial supremacy by potentially subjecting virtually every voter regulation to litigation in federal court. According to the twists and turns of the majority opinions, purposeful racial discrimination can be ‘inferred’ even without a shred of discriminatory utterance — not even one document of thousands of internal communications betrayed such purposes. Equally perversely, such a discrimination claim can be bolstered by legislative actions from forty to sixty years ago, when Texas was a Democrat-controlled state, whose legacy has been repudiated by current Republican dominance… Similarly, a Section 2 claim can rest on a marginal racially disparate impact estimated from sadly intransigent socioeconomic disparities coupled with a state’s ‘long-ago history’ of discrimination. Voting rights litigation is thus decoupled from any ‘results’ caused by the state.
The dissent warns that this decision “will thus foster cynicism about the courts and more rather than less racial tension.” It is another example of “unauthorized and extra-legislative transfers of power to the judiciary” that “disable the working of the democratic process, which for all its imperfections, best represents ‘we the people.’”
And election integrity was the big loser — which could be very important in November if we have a close election.