If president-elect Donald Trump and Republicans push for broad changes to American's voting laws, they could face an impediment — state and federal court judges who are increasingly striking down GOP-passed voting laws, casting them as intentionally discriminatory.
Trump falsely claimed on Sunday that millions of people voted illegally in the November election and said, without evidence, that California, New Hampshire and Virginia in particular had voting irregularities.
Conservatives have used the specter of voter fraud, which a number of studies have shown is virtually non-existent in American elections, to pass laws that make it more difficult for people of color and college students to vote. Both of those groups tend to back Democratic candidates.
“All of these lies are pretext to massive voter suppression,” said Ari Berman, a sharp critic of these GOP-passed voting laws and author of the book “Give Us the Ballot: The Modern Struggle for Voting Rights in America.
Beyond his voting fraud comments, Trump has said little about America's voting system and what changes he would make. The big question is whether Trump, if he believes these unfounded claims about voter fraud, will use the presidency to support and potentially buttress the conservative agenda on voting issues by urging more states to adopt voter ID laws and limit early voting.
The Obama-Era Voting Battle
After Obama’s election in 2008, conservative-controlled states across the country adopted provisions such as limiting the days of early voting, eliminating early voting on Sundays and requiring photo ID’s to cast ballots, all laws that disproportionately affected blacks in particular. In turn, the Obama administration filed suits to stop the implementation of these laws.
Meanwhile, in liberal states, there was an effort to expand same-day registration, early voting and other measures that are designed to increase the number of people who vote.
Symbolically, Trump has already aligned himself with conservatives. In the final days of the campaign, the businessman said Nevada’s election process was a “rigged system” because some precincts in heavily-Latino Clark County remained opened for hours after poll closing time. The Trump campaign filed a lawsuit against Clark County, which a Nevada judge rejected, citing a state law allowing people to vote as long as they are in line before polls close.
In another move that has worried liberals, Trump has met since his election victory with Kris Kobach, the Kansas secretary of state who authored a voter ID law in his home state and has been pushing for them across the country.
Trump’s Team Could Influence State Policy, Federal Policy, or Both
Thirty-four states, most controlled by Republicans, have passed some kind of law mandating a formal identification to vote, according to the National Conference of State Legislatures. Those laws vary widely by state, and some of them have been struck down by courts.
Kobach has called for all 50 states to adopt laws that would require proof of U.S. citizenship (generally a passport or birth certificate) to register to vote and then a valid photo ID to cast a ballot.
Trump and his team could press Republican governors to adopt provisions along the lines of Kobach’s proposal, in the same way that Obama successfully pushed cities and states in liberal areas to adopt his policies, such as raising the minimum wage.
And with control of the president and both houses of Congress, Republicans could go further.
Trump did not propose national legislation on voting during his campaign, and Republicans in Congress have not put voting on their list of goals for Trump’s first year. But Democrats have used federal power to enact their agenda in the past (the Voting Rights Act in 1965, the Motor Voter Act in 1993) on voting issues, and Trump could do the same.
As Berman has written, U.S. Sen. Ted Cruz, a Republican from Texas, has proposed federal legislation that would allow states to require id's for people to register to vote.
In regards to the Voting Rights Act, Trump’s administration is likely do very little.
In 2013, the U.S. Supreme Court struck down the requirement in the Voting Rights Act that a bloc of states, mostly in the South, get their voting laws cleared with the Justice Department. The Obama administration had been pushing for the restoration of a modified version of this provision.
Republicans in Congress already opposed that idea, and the election of Trump likely means that kind of provision is dead for now. Jeff Sessions, the Alabama U.S. senator who is Trump’s nominee to be attorney general, is a strong opponent of pre-clearance.
Trump’s Team Could Intervene in State Voting Law Legal Disputes
Even without the pre-clearance requirement, Obama’s Department of Justice has filed suits under the Voting Rights Act, arguing states are violating the law with voter-ID laws and limiting early voting days. Obama’s DOJ was part of a coalition of groups that successfully filed suit against the voting law adopted by Republicans in North Carolina in 2013.
Having Trump in the White House will not end these lawsuits, as Obama’s DOJ is usually joining the American Civil Liberties Union and other liberal groups in filing them.
But the federal government putting its weight behind these lawsuits is symbolically important, and Trump's team is very unlikely to do so.
What’s unknown is how Trump’s team will handle voting provisions passed in liberal states. Washington and Colorado have recently adopted laws allowing everyone in those states to vote-by-mail. California adopted a provision last year that essentially automatically registers people to vote when they go to the DMV to get or renew their driver’s license, unless a person specifically opts out of being registered.
Democrats want to get similar laws passed in states across the country, in part on the idea that easier registration will draw in more low-income and minority voters.
Courts Will Have A Huge Role
Unlike national security, where the president has a broad range of executive authority and judges are often reluctant to interject, there is a long history of judges gutting provisions that they feel violate minority rights. Many of the voting laws passed by Republicans in the Obama era were struck down by courts.
“In North Carolina, restriction of voting mechanisms and procedures that most heavily affect African-Americans will predictably redound to the benefit of one political party and to the disadvantage of the other,” a federal appeals court wrote in striking down the North Carolina voting law earlier this year. “As the evidence in the record makes clear, that is what happened here.”
Myrna Pérez, the head of the Voting Rights and Elections project at the Brennan Center for Justice at New York University, said "There’s a difference between what may be attempted and is a viable threat with what [the Administration and Congress] may actually be able to do."
She added, “There will be a giant, strong, vigorous pushback on efforts – in the courts and legislatively.”
The Shadow War on Voting Rights Is Likely to Continue
Even without changing voting laws, state and local officials can complicate voting for different blocs, changing the location of offices of people where can get ID’s to vote or the number of polling places. The Leadership Conference, a D.C-based civil rights organization, estimated there were 868 fewer places to vote in 2016 compared to 2012, usually because of polling places closed in liberal-leaning areas in conservative states.
The constant legal questions around voter ID have created confusion over what is exactly is required to vote in certain states.
Even if Trump does nothing, the way he won is likely to reinforce Republican views of voting policy. Trump won the election despite losing overwhelmingly among among black and Latino voters. Moves that make it easier for blacks and Latinos to vote are unlikely to help the GOP electorally.