Tokaji: “An Ominous Supreme Cout Decision”

Dan on yesterday’s decision:

It’s still possible that the Supreme Court will decide the Ohio case on the merits. If it does, further cutbacks to voting rights – under the Constitution and the Voting Rights Act – are likely. On this point, I quite agree with Rick Hasen (despite our disagreement on the merits in Husted v. NAACP). Even if the Court doesn’t rule take the Ohio case, it could decide a case coming out of North CarolinaTexasWisconsin, or some other state. Voting rights advocates should be concerned, and surely are, about the prospect of Supreme Court review in any of these cases.

Back in 2008, when the Supreme Court upheld Indiana’s voter ID law in Crawford v. Marion County Election Board, I said: “it could have been worse.” Although I disagreed with the outcome of that case, the balancing test articulated by a majority of justices in that case was reasonable, allowing the burdens of voting restrictions to be weighed against the benefits to the states. Lower courts have used that standard to stop the worst instances of partisan manipulation of voting rules, in Ohio and elsewhere. Yesterday’s ruling is reason to fear that the Supreme Court may tighten the screws on the lower courts, making it more difficult for them to protect the right to vote.

In other words, it could get worse.

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