The Supreme Court won’t stand up for voting rights. But some state courts will.

The Supreme Court won’t stand up for voting rights. But some state courts will.

Opinion by 

Paul Waldman

Columnist

July 7, 2021 at 5:48 a.m. GMT+9

When the Supreme Court recently upheld a pair of laws in Arizona that restrict voting rights, reaction was divided. Some said it could have been worse; the court’s conservatives could have declared the entire Voting Rights Act unconstitutional. Others argued that in fact it was worse, and the VRA is dead in all but name.

But few will predict that the new GOP wave of state-level voter suppression laws will receive an unwelcoming reception if and when they are reviewed at the high court. Which is why state courts are looking like the last remaining legal backstop to protect voting rights.

We saw that at work in New Hampshire last week, where the state supreme court struck down a law passed in 2017, in the wake of former president Donald Trump’s ludicrous claim that he lost the state because thousands of people had been bused in to vote.

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The New Hampshire law, which created a new and confusing set of requirements for some voters to prove where they lived, was nullified on the grounds that it violated the state constitution, which guarantees every resident of the state an “equal right to vote.” Republican-appointed judges joined in the unanimous decision.

The contrast with Justice Samuel Alito’s decision in the Arizona case is stark. The New Hampshire justices concluded essentially that “equal” means “equal,” and unusual bureaucratic requirements that make voting more cumbersome could not be allowed. Alito, on the other hand, wrote that even provisions that clearly fall more heavily on certain groups — in the Arizona case, minority voters, especially Latinos and Native Americans — are not a problem as long as they still retain the basic opportunity to vote by other means.

In other words, under the regime Alito has created, unless there is clear proof that a legislature passed a law with racist intent — which they’re never going to say out loud — it will be almost impossible to get it struck down. The New Hampshire court, on the other hand, concerned itself with whether in practice a suppression law fell harshly on certain groups more than others. And if it did, they said, it violated the state’s constitution.

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Which brings to mind other key decisions regarding the Pennsylvania Supreme Court and the 2020 election. Republicans there sought to have the U.S. Supreme Court overrule the state court’s ruling that some steps to make voting easier during the pandemic were justified by that state’s constitution. The court refused (though several conservative justices disagreed).

As long as the principle they upheld remains intact — that it’s the role of a state’s courts to determine what the state’s constitution requires — there’s a path for GOP voter suppression to be restrained.

But of course, not all state supreme courts are inclined to do so (and we should remind ourselves that it is absolutely bonkers that we elect judges at all; that system is used almost nowhere else on earth).

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What happens if they aren’t? You can see the answer — and the brutal effectiveness of some GOP suppression efforts — in this maddening story from Montana. Republicans there passed a law making it illegal for anyone to be paid to collect ballots and turn them in, like a staffer for a community nonprofit or advocacy group. It’s a law very similar to one of the Arizona laws the U.S. Supreme Court just upheld.

Who bears the burden? You’ll never guess:

Geography, poverty and politics all create obstacles for Native Americans. The Blackfeet reservation is roughly the size of Delaware but had only two election offices and four ballot drop-off locations last year, one of which was listed as open for just 14 hours over two days. Many other reservations in Montana have no polling places, meaning residents must go to the county seat to vote, and many don’t have cars or can’t afford to take time off.

If you must walk a few blocks to your polling place, imagine how you’d feel if you had to drive 60 miles to cast your ballot. Now imagine you didn’t have a car, or were sick at home, and there’s no reliable mail service where you live.

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In April, Montana Gov. Greg Gianforte(R) — who may violently assault you if you ask him about health care policy — signed a pair of new suppression laws, one imposing new ID requirements to vote and the other eliminating same-day registration, which the state had in place for 15 years, and which was also particularly useful for Native voters given the challenges they face in voting.

Might the Montana Supreme Court find that those laws violate the state constitution? It’s possible. But if it doesn’t, the legal avenues to challenge them will be all but non-existent.

This is an unprecedented time in American history, when one party has decided that it must be passionately committed to making voting harder and more burdensome. It’s why secretary of state races are more important than ever, and why Democrats everywhere will have to both persuade voters and figure out ways for them to jump over hurdles Republicans place in their path. Sometimes a state supreme court can remove those hurdles, but many of them will remain.