President Trump and his Republican followers believe they can ensure victory in November by limiting the number of people who can vote. What’s worse, in recent decisions, Republican-appointed judges seem to have fallen in step with this strategy, more inclined to advance the party’s interests than uphold the Constitution.
Two troubling decisions by federal appeals courts this month limited the rights of certain people to vote, even though the Supreme Court has long held that voting is a fundamental right under the Constitution.
One of those decisions would restrict access to absentee ballots in Texas, an especially troubling turn as the country grapples with a pandemic that has claimed more than 200,000 lives and shows no signs of abating. The other would prohibit ex-felons in Florida from voting unless they pay any fines or court fees they owe. As many as 774,000 people could be barred from the polls as a result.
In the Texas decision, the United States Court of Appeals for the Fifth Circuit reversed a lower-court order requiring Texas to expand the availability of absentee ballots. Anyone who is at least 65 can vote by mail in Texas, but younger people can do so only under limited circumstances, like being disabled or absent from their home county.
The lower-court judge, Fred Biery, appointed by President Bill Clinton, ruled that anyone in Texas should be able to vote by mail, especially in light of the pandemic. Would-be voters should not have to choose between voting and risking exposure to the coronavirus by standing in line to vote, the judge said. He asserted that the Texas law violates the 26th Amendment’s prohibition against denying or abridging the voting rights of anyone 18 or older on the basis of their age.
But in an opinion by Judge Leslie Southwick, who was appointed to the bench by President George W. Bush, the court found no violation of the 26th Amendment. “This claim fails because adding a benefit to another class of voters does not deny or abridge the plaintiffs’ 26th Amendment right to vote,” Judge Southwick wrote.
Of his two Democratic colleagues, one concurred; the other dissented on the merits.
Voters should not have to risk becoming infected by the coronavirus at their polling places. It is impossible to understand what interest Texas has in restricting voting by mail other than the Republican hope of depressing turnout.
In the Florida decision, the United States Court of Appeals for the 11th Circuit upheld a state law requiring that ex-felons pay all of their outstanding fines and fees in order to vote. In 2018, Florida voters passed an initiative, Amendment 4, which provided that “any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.”
The Republican-controlled Legislature then passed a law that barred ex-felons from voting unless they paid all money owed to the state, such as fees for court costs, and any fines. Judge Robert Hinkle of the Federal District Court, another Clinton appointee, concluded that this was an unconstitutional “pay-to-vote system.” Over a half-century ago, the Supreme Court held that the government cannot condition the right to vote on people having to pay even a dollar.
But the Eleventh Circuit, in an opinion written by Judge William Pryor, who also was appointed by President Bush, reversed that decision and said that the Florida law was permissible.
Florida could decide, Judge Pryor concluded, what conditions to put on voting by ex-felons, and the Legislature could interpret “all terms of sentence including parole or probation” as including fines and fees, even though that would limit the right to vote based on ability to pay.
Every Republican appointee joined the decision; every Democratic appointee dissented. As Judge Adalberto Jordan, appointed by President Barack Obama, put it for his colleagues in his dissent, “Had Florida wanted to create a system to obstruct, impede, and impair the ability of felons to vote under Amendment 4, it could not have come up with a better one.”
The Florida law and the court’s decision cannot be understood as anything other than a desire to suppress voting. Judge Jordan underscored his dissent by quoting a 2018 American Bar Association resolution establishing guidelines for court fines and fees: “Failure to pay court fines and fees should never result in the deprivation of fundamental rights, including the right to vote.”
One would hope that the Supreme Court would reverse the lower courts in these two cases, but so far this year, in election matters, the justices seem just as divided along party lines.
In April, the court voted 5-4 to overturn an injunction in Wisconsin that would have facilitated absentee voting. Understandably, there was a huge increase in requests for absentee ballots before the state’s April primary. Wisconsin law said that for the absentee ballot to be counted, had to be received by Election Day.
But a huge increase in requests meant that many ballots were not likely to be returned in time. Judge William Conley of the Federal District Court took the sensible step of saying that ballots would be counted so long as they were received no later than six days after the election. An unsigned order from the United States Court of Appeals for the Seventh Circuit let Judge Conley’s order stand.
The Supreme Court’s five Republican-appointed justices overruled that decision, arguing that federal courts should not change the rules of the election so soon before it was to occur. Justice Ruth Bader Ginsburg wrote a vehement dissent, joined by the court’s three other Democratic appointees, asserting that voters should not have to choose between right to cast a ballot and endangering their health in a pandemic.
In two other cases this year, Federal District Court judges in Alabama and Texas made it easier for voters to cast absentee ballots in the light of the pandemic. In both instances, the Supreme Court, 5-4, with the five Republican-appointed justices in the majority, stopped the district courts from doing this.
It’s uncomfortable to describe our judges in such partisan terms, but the pattern is stark and can’t be ignored. As the election approaches, our judges and justices must set aside the preferences of their political parties and do all they can to protect everyone’s right to vote. Our democracy requires it.
Erwin Chemerinsky, the dean of the law school at the University of California, Berkeley, is the author, with Howard Gilman, of “The Religion Clauses: The Case for Separating Church and State.”
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