Bipartisan Support in Senate for Gorsuch Confirmation

Today, two Democratic senators announced support not only for a vote for cloture on Judge Neil Gorsuch's nomination to the Supreme Court but also for his confirmation.  

Senator Joe Manchin from West Virginia said:

After considering his record, watching his testimony in front of the Judiciary Committee and meeting with him twice, I will vote to confirm him to be the ninth justice on the Supreme Court. . . . Throughout Judge Gorsuch’s career, he has come to his legal rulings objectively, through the letter of the law rather than through his own opinion. 

During his time on the bench Judge Gorsuch has received praise from his colleagues who have been appointed by both Democrats and Republicans.  He has been consistently rated as a well-qualified jurist, the highest rating a jurist can receive, and I have found him to be an honest and thoughtful man.  I hold no illusions that I will agree with every decision Judge Gorsuch may issue in the future, but I have not found any reasons why this jurist should not be a Supreme Court Justice.

Senator Heidi Heitkamp from North Dakota said:

After doing my due diligence by meeting with Judge Gorsuch and reviewing his record and testimony before the Senate Judiciary Committee, I've decided to vote in favor of his confirmation.  He has a record as a balanced, meticulous, and well respected jurist who understands the rule of law.  He has unique and critical experience with tribal sovereignty, Indian law, and public lands issues in the west, and has received the endorsement of numerous tribes and major Native American organizations.  During our meeting and at his hearing, he reinforced the importance of a judiciary that remains independent of the executive and legislative branches of government - and that acts as a proper check and balance on the other two branches of government.

Other Democratic senators demonstrated some further cracks in the hardline Trump resistance movement today.  Senator Claire McCaskill of Missouri recognized that the Democrats' gridlock strategy for the Supreme Court is likely to backfire, and Senator Ben Cardin said that the Democrats should not filibuster Gorsuch.

Senators Heitkamp and Manchin are up for reelection in 2018 in states that voted for Donald Trump in 2016, and perhaps these senators have recognized the political consequences of voting against an eminently qualified judge like Judge Gorsuch.  Perhaps they have decided to listen to their constituents instead of the radical progressive special interest groups that increasingly control the Democratic Party.  Or perhaps, tellingly, they considered his extensive judicial record and made their decision on that basis, unlike their Democratic colleagues who have not bothered to review his record.  

Whatever the reason, we applaud Senators Heitkamp and Manchin for questioning the blind obstruction of the current Democratic Party and for supporting an extremely well-qualified and well-respected nominee for the Supreme Court.

Status of Voter ID Laws after 2016

2016 was a remarkable year in many ways, not least of which was the number of court decisions on voter ID laws.  What is the state of the law on the validity of voter ID requirements after 2016?:

Rule One: Voter ID, by itself, is presumptively valid. In the immediate post-HAVA era, new photo ID laws were seen as a threat and drew litigation challenges accordingly. Over time, however, courts – including the U.S. Supreme Court in the 2008 Crawford case – came to accept voter ID and uphold it against what lawyers call “facial” challenges; i.e., challenges to its mere existence. More specifically, courts are accepting states’ proffered justifications of fraud prevention and are finding that ID laws, by themselves, are not an undue burden on voters. In 2017 and beyond, therefore, any plaintiff challenging a new or existing voter ID law will have to do more than simply allege discrimination and/or limitation of voting rights to prevail. 

Rule Two: legislative intent behind voter ID matters. That said, general judicial acceptance of voter ID laws erodes quickly if there is evidence of actual discriminatory intent behind their enactment. In 2016, federal appeals courts blocked election laws in Texas and North Carolina because of evidence that legislators in both states had consulted, and may have relied upon, data suggesting those laws would disproportionately affect protected minorities under the Voting Rights Act. Going forward, any legislature seeking to enact or expand voter ID laws will be closely scrutinized to ensure that similar discriminatory intent is not motivating those laws. Note, however, that plaintiffs challenging such laws may no longer be able to count on support from the U.S. Department of Justice under the new Administration. 

Rule Three: whether and how voters without ID can get it is crucial. While facial challenges to voter ID laws are likely to fail, recent experience suggests that an “as-applied” challenge focused on the implementation of these laws has more likelihood of success. State and federal courts have been very clear that voter ID requirements begin to lose their presumption of validity when evidence suggests that voters without ID can’t actually get it. These fights can be intensely detailed; in Wisconsin, courts temporarily halted implementation of ID laws because of deficiencies at the state DMV in training staff to assist voters with obtaining ID, and in Texas the instructions to poll workers about what kind of ID could be required were subjected to direct oversight by the court. In this environment, the voter ID fight isn’t about sweeping legal issues but rather the nitty-gritty of implementation. 

What does this mean for voter ID going forward? I think it’s pretty straightforward: legislatures are likely free to enact such laws if they have the votes, but there must be no evidence of discriminatory intent and implementation matters; in other words, it isn’t enough to simply say voters will be allowed to get free IDs – there has to be an actual plan. In this environment, theoretical legal arguments about the constitutionality of ID laws are most powerful during legislative debate but are unlikely to succeed in court. The real fight is over intent and what happens after enactment. Proponents and opponents alike would be well-advised to put less emphasis on legal research and more on data gathering.

We are hopeful that some of the bad decisions on voter ID will be overturned in 2017.  Here are some of the notable voter ID stories from 2016:

• Fourth Circuit upheld Virginia's voter ID law
• Missouri voters passed a constitutional amendment allowing the state to require photo voter ID with 63% voting in favor
• Fourth Circuit struck down North Carolina's voter ID law; appeal to the Supreme Court is likely
• Fifth Circuit required Texas to modify its voter ID law; petition for writ of certiorari pending at the Supreme Court
• Multiple challenges to Wisconsin's voter ID law are ongoing
• A study exposed the inflated, faulty statistics repeatedly cited by voter ID opponents

Election News You May Have Missed, Part 1

In all the news from the election last week, you may have missed two important changes passed by referendum in Missouri and Alaska.

In Missouri, voters overwhelmingly approved an amendment to Missouri's constitution to allow a photo ID to be required to vote:

With 63% voting in favor, voters in Missouri passed a constitutional amendment that will allow the state to enact a law requiring photo ID to vote.  The amendment gives state constitutional approval to a bill passed earlier this year to require a photo ID.  With the passage of the constitutional amendment, photo ID is now required in Missouri.

In Alaska, voters approved a unique form of mandatory voter registration, tying voter registration to applications for the state's Permanent Fund distributions:

Yesterday, voters in Alaska approved a ballot measure 65% to 35% that will automatically register Alaskans to vote when they apply for Alaska Permanent Fund distributions:

Ballot measure 1 would increase the number of registered voters in the state by automatically registering Alaskans when they apply for their PFDs. . . . Supporters say it’s a way to increase participation in elections, save time, and modernize state government. 

But the proposal has faced opposition from many Alaskans since its inception. Critics say the program’s $942,885 price tag would be a waste of money at a time when the state is grappling with a multi-billion dollar budget deficit. 

The Alaska Permanent Fund is an “annual dividend that is paid to Alaska residents from investment earnings of mineral royalties.”

The change in Missouri will help protect the integrity of its elections.  In addition to being expensive, the change in Alaska may hurt the integrity of its elections by introducing inaccuracies into its voter rolls.

Missouri Legislature Seeks to Amend Constitution to Enact Photo Voter ID

The Missouri legislature has passed a bill to put a constitutional amendment, allowing a photo voter ID law, on the ballot this November. The St. Louis Post-Dispatch published an article overviewing the paths now available to the bill's potential enactment.  Missouri has struggled to enact the law, facing steep opposition by the left and a 2006 court ruling making the first iteration unconstitutional. The legislation has been a hotly debated topic throughout the session and could face a Governor’s veto and a subsequent override from the legislature.

Under the language that would go into effect upon voter approval, voters without an ID will be able to sign a form saying that they don’t have an ID, are who they claim to be, and recognize that voter ID is the law of the land.

If they decline to sign the form, they could cast a provisional ballot; the vote would count if the person could later prove their identity.

The state would also pay for IDs and source documents needed to obtain them. If the state did not appropriate money in any given year, the requirements would not be in effect.

Election integrity continues to be the driving force behind voter ID and generally speaking, the public overwhelmingly favors the laws. Republican representatives also addressed the continued doomsday rhetoric from the left:

”The folks on the other side, I certainly understand and sympathize where they’re coming from, because they are coming at this issue from a civil rights perspective,” said state Rep. Shamed Dogan, R-Ballwin.

”There’s no way I would be supporting this if it disenfranchised people who look like me — people who are my ancestors, people who are my relatives, people who are my best friends,” Dogan, who is black, said.

It is likely that in November voters in Missouri will have a say in the integrity of their elections due in no small part to the dedication of their own elected officials.