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.

That leaves only individual challenges to the application of the law--a women denied an abortion or a voter disenfranchised in an election--to try and undo its damage. The policy implications of this legal reality are enormous. Bringing individual challenges to a law like Pennsylvania's voter ID are expensive and burdensome. Lawsuits are inconvenient and time-consuming. Americans already vote in shamefully low numbers. How many would realistically challenge their disenfranchisement at such a level to create a change in the law? Meanwhile, the law stands and has its intended effect. Fewer eligible voters participate in the electoral process and those that do tilt heavily conservative.

The same is only more chilling in the context of abortion rights. In those cases some of the individual challenges to a law like Arizona's would have to come from women denied abortions, a point far to late for the individual women affected by the law.

Conservatives understand the wide berth granted to them by the Roberts court and they are taking it. A day after the Pennsylvania court upheld the state's voter ID bill Gov. Tom Corbett's (R) administration announced it was scrapping plans to allow voters to apply online for absentee ballots for the November election and to register online to vote--two initiatives administration officials testified during the challenge to the law would be in place to alleviate concerns of widespread voter disenfranchisement. And who can forget Republicans admitting that the Arizona 20 week ban was drafted specifically to trigger Supreme Court review of Roe v. Wade? That is not evidence of legislating in good faith, and yet there is little we can seem to do about it through the courts.

Jessica Pieklo is a lawyer and writer focusing on health law, constitutional law and civil rights. She is adjunct faculty at Hamline University School of Law where she teaches ethics, business law and health law courses. You can find her other writing Care2.com and Hegemommy.com. Prior to writing and teaching she was a trial attorney focusing on corporate fraud and governance, shareholder litigation and civil rights claims.
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Election 2018