To Be or Not To Be—Political

SCOTUS employs the dodge of “political question” when it decides not to decide an issue presented to it. Of late, the murky mask has been called into play on several occasions involving voting rights. But SCOTUS will decide on voting rights questions as it suits; in Shelby County v. Holder [2013], it eliminated certain provisions of the 1964 Voting Rights Act requiring states to conform to federal criteria in making changes affecting voting.

The policy of “political question,” according to observers, is invoked when the question presented is fundamentally one within the jurisdiction of another branch of government or does not present a judicially discoverable or discernible legal matter. This is generally the rationale for SCOTUS’s refusal to undertake gerrymandering cases, as voter qualifications and boundaries under the Constitution are largely the province of the states. However, there is a line of cases in which a state’s laws violate the Equal Protection clause.

In 2012, Heidi Heitkamp won North Dakota’s senatorial race by just under 3,000 votes and, according to some data, that margin was largely the result of Native American votes in two counties. In 2017, the state legislature, in a pretext to deter unproven voter fraud, passed a voter ID measure requiring that documentation for voting demonstrate a “current residential street address.” Native American groups challenged the requirement, noting that, among other things, the US Postal Service does not provide residential street addresses in reservation communities, nor is reservation land crisscrossed with named routes. Thus, although tribal ID cards often with post office box addresses were previously accepted as documentation, they were no longer valid for voting purposes.

On April 3, 2018, a US District Court issued an injunctive stay of the statute’s provisions, citing:

 … under current State law an individual who does not have a “current residential street address” will never be qualified to vote.

The June 2018 primaries proceeded without the barriers presented by the new ID requirements and the website of the Secretary of State noted that the former ID documentation continued to be valid. However, on September 4, the Eighth Circuit, in a 2-1 decision, lifted the stay, allowing the new requirements to take effect. The dissent agreed with the lower court, stating that the burden on voters would be excessive, and likely many eligible voters would be disenfranchised. An appeal was taken to SCOTUS which, on October 9, denied the application, in a 6–2 ruling, with Justices Ginsburg and Kagan dissenting. The dissent noted several reasons for deciding upon the merits of the appeal:

  • a policy of SCOTUS not to allow voter changes close to an election
  • 70,000 (20%) of turnout voters in North Dakota would be affected
  • 18,000 North Dakotans lacked supplemental documentation containing the required information
  • severe risk of widespread confusion and disenfranchisement

The decision not to intervene on behalf of the citizens and voters of North Dakota defies common sense, where the harm to residents—most acutely Native Americans—is direct, threatened by the ID requirements becoming effective less than one month before the general election. And, given the facts of the margin of victory for Heitkamp in 2012, the political aspects are impossible to ignore. Clearly, the Republican-dominated state legislature responded to the 3,000-vote margin with an ID requirement that specifically targeted Native Americans.  Even assuming the statute on its face appeared neutral, its effect demonstrably falls upon a vulnerable class of citizens for whom the ID requirements were keenly crucial to the exercise of their voting franchise. The state’s action created a class of citizens—ones without street addresses—separate and not equal to those with street addresses.   

In the Shelby case, SCOTUS, by a 5–4 vote, declared that the federal restrictions on states contained in the Voting Rights Act were outdated, based upon 40-year-old criteria, and no longer pertinent to protect voters against discrimination. In 2018, Pew Research reported that, following Shelby, nearly1,000 polling places in states covered in the 1964 act, including 10 in Georgia, were closed, many of which were in minority-dominated areas. The conclusion to be drawn is that deciding on voting rights issues clearly has political consequences—as does not deciding.

If SCOTUS sought to avoid trespassing on a political question, it had the option to accept the case, thereby delaying any decision on the merits. At least this would have postponed the effect of the legislative measure until after the November election. By affirming without written opinion, the decision of the Eighth Circuit to lift the lower court stay, SCOTUS, in effect, decided a political question in favor of a decidedly political action.  Here, the state’s action disenfranchised an identifiable minority group and the lower court set forth data and information describing the injury to those affected.

If SCOTUS’s jurisprudence is at all dictated by partisan politics, the nation is in for a long wait to enjoy savoring the type of justice evidenced by earlier benches. “Separate but equal” existed for nearly 60 years before being overturned by Brown v. Board of Education.. Perhaps Native Americans for whom justice has been very ephemeral may not have to wait as long.

Hamlet [Act III] posed the issue as a choice, whether it’s nobler “to suffer the slings and arrows of outrageous fortune” or to oppose them and not bear “the oppressor’s wrong” or “the law’s delay.”

Categories: Issues, National, State

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