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Why the GOP Is Getting Away With Extremist Laws

Republican-led state legislatures have moved to pass more restrictive civil rights measures, like voting and abortion restrictions, with an understanding those laws will pass constitutional scrutiny.


Voting rights activists thought they had a strong challenge to Pennsylvania's restrictive voter ID law. After all, Republican officials admitted the law was designed to  disenfranchise Democratic voters and that  actual voter fraud was non-existent. But last  Wednesday  Commonwealth Court Judge Robert Simpson upheld the law. The 70-page opinion is a detailed and well-reasoned application of the law. And that's the problem.

As we've seen in the  context of reproductive rights, the Supreme Court under the helm of Chief Justice John Roberts has made it exceedingly difficult to challenge the constitutionality of laws like the Pennsylvania's voter ID measure before they take effect. This has also emboldened Republican-led state legislatures to pass more restrictive civil rights measures, like voting and abortion restrictions, with an understanding those laws will pass constitutional scrutiny. The  district court decision upholding Arizona's 20-week gestational ban and this state court decision upholding discriminatory voter ID represent just the beginning. The legal landscape has tilted far to the right and is not likely to correct itself anytime soon.

The problem is two-fold. First, under  Gonzales v. Carhart courts are to give wide discretion to the findings of fact used to support a particular piece of legislation. Standing alone, that premise is not all that controversial. During the legislative process lawmakers hold committee hearings, interested parties submit testimony and, presumably, the legislation that results is drafted to address a specific policy goal.

But the holding of Gonzales presumes that legislators draft legislation in good faith, and  as we've seen time and time again in the states this is not a presumption we can afford to make. Whether its supporting so-called "fetal pain" laws or voter ID, Republicans are not legislating in good faith. They are gaming the process so their findings reflect ideological-driven conclusions supported by ideologically manufactured "facts" (like the ability of a fetus to feel pain at 20 weeks or the existence of voter fraud) to create a record insulated from judicial review. And then they pass the most outrageous legislation they can get away with.

At that moment advocates face a choice: try and challenge that law immediately before it goes into effect or wait until an individual plaintiff or a group of plaintiffs is actually injured by the law and challenge it then. In the case of abortion rights and voting restrictions the obvious preference is to challenge the law before it goes into effect rather than wait for it to swing an election or take a woman's life. But to successfully challenge a law before it goes into effect in what is known as a facial challenge plaintiffs face the hurdle the Roberts court threw at them in  Ayotte v. Planned Parenthood. They must prove that under no circumstance would an application of the challenged law be constitutional--that is, if there's some way the law can be saved the court is obliged to save it.

It's a nearly impossible hurdle to clear as the Pennsylvania voter ID and Arizona 20-week gestational ban cases make clear. In  Applewhite v. Pennsylvania, the case that upheld the voter ID requirement, Judge Simpson's opinion  returns to these two principles to justify keeping the law in place. It doesn't matter that the state admitted there was no evidence of voter fraud to justify the law; when the law was in the committee stage supporters offered expert testimony that voter fraud was a legitimate concern. The court, Judge Simpson held, was bound to defer to those findings. And even though there was unsettling testimony that the law was designed to hand Pennsylvania's Electoral College votes to Republicans, he also held that because not all supporters of the bill shared that animus, the bill should stand.

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