Courts may play pivotal role on voting rights in 2016 election

WASHINGTON — The Supreme Court decided a presidential election 16 years ago based on how votes were counted. This year, a shorthanded court seeking to avoid the limelight may help decide who can vote in the first place.

Petitions challenging restrictions on voting in key states could reach the high court before Election Day, putting the justices exactly where they don't want to be — at the fulcrum of American politics in what promises to be a wild race for the White House.

Chief Justice John Roberts' court has itself to thank for some of the laws enacted after the justices struck down a key part of the Voting Rights Act in 2013. Those laws impose new rules for registering and voting that could limit access to the polls for minorities and young people in particular — the coalition that propelled Barack Obama to the White House in 2008 and 2012.

Since the court's 5-4 decision in Bush v. Gore ended a dispute over Florida's vote count in George W. Bush's favor, the justices have intervened regularly in elections. They allowed Ohio Republicans to challenge voters at the polls in 2004. They upheld Indiana's photo identification law in 2008. Two years ago, they let restrictions passed by Republican legislatures stand in North Carolina, Ohio and Texas while blocking them in Wisconsin.

Supreme Court rules Texas can enforce voter ID law

This year, the court may be asked by civil rights groups and the Democratic Party to play its most important role since 2000 — at a time when Justice Antonin Scalia's death has left it with only eight members and at risk of deadlocking.

“We may very well continue to see a showdown this fall before the court,” says Kristen Clarke, president of the Lawyers' Committee for Civil Rights Under Law. "The stakes are high."

Seventeen states have new voting procedures in place for the November election, more than half of which are being challenged in court. Many require voters to show photo identification, such as a strict law in Texas that opponents say could leave up to 600,000 voters without the proper ID. Others target rules for registering, early voting and provisional voting, such as a wide-ranging North Carolina law that caused confusion and long lines in March's primary.

Civil rights groups used the Voting Rights Act to beat back most voting restrictions in 2012. But the following year, the Supreme Court struck down a part of the law that forced a number of mostly Southern states and municipalities to get federal approval before changing even a single polling place.

Supreme Court strikes down key part of Voting Rights Act

As a result, Democrats have joined the legal effort this year in a major way, filing lawsuits not only in Ohio, Wisconsin, North Carolina and Virginia but also in Arizona, where a severe reduction in polling places produced hours-long lines at the polls in March.

“We are really in the first election cycle of these," says Marc Elias, general counsel for Hillary Clinton's presidential campaign, who has filed the lawsuits on behalf of the Democratic Party. "This is the first time we’ve seen the Republicans pass such comprehensive laws at the state level to make voting so much more difficult.”

Not to be left out of the courtroom battles, Republicans may sue in Virginia, where Gov. Terry McAuliffe recently restored voting rights to about 200,000 felons who have served their sentences.

“This election cycle and the litigation involved is really an extension and further evolution of 2000 Bush v. Gore," says Thor Hearne, who represents Republican legislatures in election law cases. "It's an increasing effort to pre-litigate the election by litigating the rules for the conduct of the election.”

Seeds sown in 2013

The Supreme Court planted the seeds itself with its 2013 ruling in Shelby County v. Holder, an Alabama case that freed nine states and parts of six others from federal oversight.

Texas implemented its photo ID requirement, which had been blocked under the Voting Rights Act, almost immediately after the ruling. North Carolina added far-reaching restrictions less than two months later. Rather than relying on swift Justice Department intervention, civil rights groups went to court for what has turned out to be a years-long effort.

“The groups are great at getting into court. But getting the things actually blocked is difficult." says Pamela Karlan, a Stanford Law School professor and former top Justice Department civil rights official. “It takes a lot of money. It takes a lot of time. It takes a lot of litigation to get to the same point.”

The results are mixed thus far, and they promise to become more jumbled in the months ahead. Texas' restrictions have been struck down as racially discriminatory by two federal courts but will be heard by the full U.S. Court of Appeals for the 5th Circuit, a conservative court, later this month. The Supreme Court last month warned that if a decision isn't reached by July, it would consider blocking the law from being imposed in the November election.

Supreme Court won't block Texas photo ID law — yet

North Carolina's law was upheld in federal district court but faces possible reversal in the 4th Circuit, a more liberal court, which will hear the case in June. A major concern among voting rights groups is the loss of same-day registration, used by nearly 250,000 voters in 2008, when Obama carried the state by 14,000 votes.

"Clearly, North Carolina is ground zero," says Penda Hair, co-director of the Advancement Project, one of several groups challenging the state law. "It could be a real meltdown."

Wisconsin's law was upheld in the 7th Circuit, but a portion of the case was sent back to district court after problems at the polls in April. Cases in Virginia, Ohio, Arizona and elsewhere have yet to be decided.

Will Supreme Court step in?

Defenders of the states' efforts to tighten up election laws say the Voting Rights Act is working the way it was supposed to — by allowing legislators to do their jobs and the courts to follow up, rather than the other way around.

The previous federal pre-clearance rules "distorted our nation’s constitutional order by treating some states and jurisdictions as everlasting bad actors," says Edward Blum, director of the conservative Project on Fair Representation, which has brought affirmative action and voting rights cases to the Supreme Court. "An important constitutional order has been re-established."

With six months to go before the election, the high court's role this year remains unclear. Depending on how lower courts resolve the many cases now pending, it may be asked to block state laws from remaining in effect for the election. With only eight justices, however, it could be loathe to step in. "There's a lot of waiting and seeing what's going to happen in the courts in all these cases," says Wendy Weiser, who directs the democracy program at the Brennan Center for Justice at NYU School of Law.

Later this year or next year — or whenever the court is back to full strength — it could agree to hear a case from North Carolina, Texas, or elsewhere in hopes of setting a national standard for what legislatures and election administrators can and cannot do. “If we can’t get to the Supreme Court to win those cases, then I do think it’s going to make it difficult going forward," says Gerald Hebert, executive director of the Campaign Legal Center, which challenges restrictive laws. "It will encourage other legislatures to keep enacting laws to maintain political power.”