Judging Voter Suppression: Is it Partisan?

How hard can a state make it for citizens to vote? It's a hot topic which some argue may impact the Presidential election in swing states, like Pennsylvania, and down-ticket races for Congress in Pennsylvania's 6th District or Georgia's redrawn 12th district.

It's no surprise to anybody that Voter ID has become a highly partisan issue from legislatures to living rooms. We are all well acquainted by now with the statistics that show that Black people of all ages, the elderly of all races and young people, particularly young people of color, are all more likely to lack the necessary identification to vote under new voter ID laws. They're also more likely to rely on early voting and more likely to be mobilized to vote through registration drives. Because these demographics lean Democrat, the impact of voter ID laws on the election results this year may be partisan, with Democrats arguably losing ground and Republicans benefiting. Republican-controlled state legislatures have introduced the restrictions and Democratic legislators have generally voted against these restrictions.

But consider this - For much of the past year, the debate hasn't been in the legislatures. Rather, they've been in courthouses. Less examined is the extent to which the rulings in these cases have been partisan and what that says about the state of our democracy.

There have been a dozen or so challenges to various forms of voter suppression laws in key states this election year - Ohio, Wisconsin, Texas, Florida and Pennsylvania, to name a few. Of the pro-voter cases in those four swing states, nine judges who voted to protect the right to vote were appointed by Democratic administrations; four were appointed by Republican administrations. The only "block the box" rulings came from Republican-appointed or Republican-identified judges.

Last month, Pennsylvania's Supreme Court returned Pennsylvania's identification law, one of the strictest in the country, back to Judge Robert Simpson, the lower court judge who upheld the law. Simpson is a Republican. The six member panel who heard the case is split down the middle - three Republicans and three Democrats. The vote to send the law back and demand a review of its impact on the "liberal access" to voter IDs was four in favor, two opposed. The two opposed were Republican judges. Today, Judge Simpson ruled to halt the voter ID requirements for this election. Election workers may still ask voters to show ID but that would not prevent voters from casting a vote. In his ruling, voter ID requirements will be allowed to go into full effect next year.

The other examples of bipartisan judicial opinion are the Wisconsin and Texas rulings. In Wisconsin, a Democratic appointed County Circuit Court Judge, Richard Niess, issued a preliminary injunction, blocking the voter ID law. A Republican appointed Circuit Court Judge, David Flanagan, made that injunction permanent in July. In the Texas voter ID and the Texas voter redistricting cases, two George W. Bush appointees, Judge Rosemary Collyer and Judge Thomas Griffith, joined Clinton and Obama appointees in striking down unfair practices.

From these cases, judicial behavior seems less partisan than, well, the behavior of our politicians, and that's a good thing. Still, this snapshot of judicial decision-making suggests that our ideologies follow us into court appointments. We expect our courts to be representative of who we are as a nation. But the law is not supposed to be too ideological. Judges are supposed to reflect, soberly, on the case law as it develops and certainly a good dose of common sense understanding of the real world in which their decisions will live.

Lest we forget, judges are people too and studies show that we are all shaped by biases that we are not always aware of. A National Agenda Opinion Poll conducted this past summer by the University of Delaware's Center for Political Communication found that support for voter identification laws is strongest among Americans who harbor negative sentiments toward African Americans. While that was true no matter one's party affiliation, the study also demonstrates that Republicans are much more strongly in favor of voter controls than are Democrats.

In our Constitutional framework, the Courts are supposed to be a check and balance to protect the minority from the majority and ensure that we all are equally protected by the laws of this great nation. That means protecting everyone's fundamental right to vote. But like many things in our policy-life as a nation, these judicial decisions show that we as a nation are becoming more ideologically polarized and partisan, less rational and less able to come together to defend the foundations of our democracy.

This November, we will choose a President who may appoint three Supreme Court Justices, since Justices Ruth Bader Ginsburg, Antonin Scalia and Robert Kennedy are deep into their golden years. Of course it isn't just up to the President. In fact, seventeen Obama nominations to the federal bench have been languishing in the Senate. Partisan politics have blocked uncontroversial nominees to the bench. But who is put forth to the bench will be determined by the person in the oval office and while appointees can be considerably less ideological than their benefactors, Americans should consider well the importance of a non-dogmatic federal bench.