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Lou Cannon: Landmark Supreme Court Decisions Likely to Have Unintended Consequences for States

The U.S. Supreme Court’s momentous rulings last month on three issues shook up the country and the states. The court gave conservatives a victory on voting rights while moving the country in a liberal direction on marriage equality. Disappointing both sides, the court also kept affirmative action on life support in a case involving admission to the University of Texas. All of these rulings may have unintended political consequences.

Take voting rights, for instance. On its face the court gave an assist to conservatives by striking down Section 4 of the Voting Rights Act requiring states and counties with a history of racial discrimination to get pre-approval from the federal government before making changes in their voting laws. Chief Justice John G. Roberts, writing for the 5-4 majority in Shelby County v. Holder, found the section unconstitutional because Congress had relied on old data in its reenactments of the Voting Rights Act, which was first passed in 1965.

In the wake of the Shelby ruling, Texas announced that a law requiring voters to show specified photo identification would take effect. It had been blocked by the Justice Department. Texas still faces a lawsuit under another section of the Voting Rights Act, but this is an uphill challenge in which the burden will be on the plaintiffs. State officials will also move ahead in Mississippi to implement a strict voter-ID law approved by voters and the Legislature but blocked by the Justice Department. So will Alabama, which never submitted its law for federal approval. Strict voter-ID laws in Pennsylvania and Wisconsin that were previously invalidated are under review by state courts.

The policy arguments on voter identification laws are unconvincing — on both sides. Liberals say strict voter-ID laws suppress the turnout of minority and low-income voters, who are more likely to vote Democrat but less likely to have photo identification. Conservatives defend the laws as a reasonable protection against fraud. But documented cases of voter fraud at the polls are rare and what fraud exists has usually involved absentee or mail-in voting, beyond the reach of voter-ID laws. The liberal charge of vote suppression is also unpersuasive. Three states with strict voter-ID laws — Georgia, Indiana and Tennessee — have not seen a significant drop-off in minority voting.

The voter-ID controversy is really about politics, at which liberals have shown considerable recent skill. Conservative analyst Ross Douthat, writing in The New York Times, called the voting rights decision “a political gift to the Democratic Party” from the Roberts court. Douthat observed that Democrats effectively used the spectre of voter suppression to mobilize their liberal and minority base, one reason that African-American turnout didn’t decline from 2008 to 2012, as anticipated.

“By trying to restrict the franchise on the margins, Republican state legislators handed Democrats a powerful tool for mobilization and persuasion ...,” Douthat wrote.

But the struggle isn’t over. Republicans have their sights on the 2014 midterms, when voters will choose the entire House of Representatives and a majority of the nation’s legislators. Super-statistician Nate Silver, also of The New York Times, has estimated that voter-ID laws could reduce turnout by 2 percent, which could have an impact in close elections. Will the projected drop-off equalize the value to liberals of the voter-ID issue? As the news analysts like to say on television: Only time will tell.

Time will also determine the reach of the Supreme Court’s decisions in two same-sex marriage cases. Writing for a 5-4 majority in United States v. Windsor, Justice Anthony Kennedy struck down the Defense of Marriage Act (DOMA) limiting spousal benefits to marriages between a man and a woman.

In another 5-4 ruling, this one by Roberts, the court decided on technical grounds not to take up Proposition 8, a 2008 ballot initiative banning same-sex marriage in California. A federal judge had ruled that Proposition 8 violated the state Constitution, a decision upheld by the Ninth U.S. Circuit Court of Appeals. The Supreme Court’s ruling let stand the lower-court decisions, opening the way to a flood of same-sex marriages in the Golden State.

Kennedy had harsh words for DOMA, saying the law imposed a “stigma” on those who entered into same-sex marriages and “wrote inequality into the United States Code.” Nonetheless, as NBC legal analyst Pete Williams noted, the high court has no appetite for tackling the larger issue of whether a ban on same-sex marriage is constitutional.

The absence of a larger ruling left the nation with a bifurcated marriage system. Thirteen states and the District of Columbia with 30 percent of the nation’s population permit same-sex marriage. Two states — New Jersey and New Mexico — have no laws on same-sex marriage. The other 35 states with two-thirds of the population define marriage as between a man and a woman. Twenty-nine of these states have a constitutional ban on same-sex marriage.

The near-term prospects for further change appeared scant when the court went home for the summer. But the way in which the court decided California’s Proposition 8 has provided an opening for same-sex marriage advocates in Pennsylvania. In California, Gov. Jerry Brown and state Attorney General Kamala Harris declined to defend Proposition 8 in court, leaving sponsors of the ballot measure to do it. Roberts, writing for the court majority, said the sponsors lacked standing because they had not suffered “actual harm.”

Two days after the court’s decision, the American Civil Liberties Union filed a lawsuit challenging Pennsylvania’s ban on same-sex marriage. State Attorney General Kathleen Kane, a Democrat, seized on this ruling and announced she would not defend the law. This put Gov. Tom Corbett, a Republican, in a tight spot, forced to choose between angering his conservative base by not defending the law or alienating the majority of voters whom polls say favor same-sex marriage. Corbett faces re-election in 2014.

Also in a tight spot, and sooner, is New Jersey Gov. Chris Christie, a Republican who favors civil unions but vetoed a bill providing for same-sex marriage, which Christie wants decided by a vote of the people. Christie is up for re-election this fall. Before that happens, however, a New Jersey Superior Court will hold a hearing on a motion by Lambda Legal, which seeks a summary judgment in favor of same-sex marriage. The New Jersey Supreme Court ruled in 2006 that gay couples are entitled to the same rights as married couples. Lambda Legal argues that after Kennedy’s ruling invalidating DOMA, it is clear that civil unions alone do not provide same-sex couples with equal rights.

Same-sex marriage could be approved in October by the Illinois Legislature, which fell one vote short in the spring. Hawaii may be next on the list. Democratic governors in both states favor same-sex marriage. Oregon voters are likely to be given a chance in 2014 to repeal a state constitutional ban on same-sex marriage. Other states where voters could be asked to overturn a constitutional ban in 2014 include Arizona, Colorado, Michigan and Ohio. Same-sex marriage advocates in these states must decide if they’d prefer to wait until the presidential election of 2016 and a presumably higher voter turnout.

The third issue on which the Supreme Court spoke remains fraught with uncertainty. Some thought the court might use Fisher v. University of Texas to drive a stake through the heart of affirmative action in higher-education admissions. The case involves a white woman, Abigail Fisher, who claims she was denied admission to the university because of her race. But the court punted. On a 7-1 decision the justices returned the case to lower courts to consider if “workable race-neutral alternatives would produce the educational benefits of diversity.”

The court’s decision offers hope for schools that want to continue using race as one of several measures of diversity, said Deirdre Bowen of the Seattle University School of Law, who has studied affirmative action extensively. But it won’t be cheap or easy. Bowen said it will be expensive for universities and colleges to come up with detailed plans — different for every school, depending on history, demographics and location — that will pass muster in federal court.

Still, the Supreme Court avoided imposing a one-size-fits-all policy on the nation’s institutions of higher learning, leaving room for creativity in devising policies to promote campus diversity. Diehards on both sides of the affirmative-action debate may deplore the ambiguity, but the court was wise to leave higher education some running room.

Lou Cannon, a Summerland resident, is a longtime national political writer and acclaimed presidential biographer. His most recent book — co-authored with his son, Carl — is Reagan’s Disciple: George W. Bush’s Troubled Quest for a Presidential Legacy. Cannon also is an editorial adviser to State Net Capitol Journal, which published this column originally. Click here to read previous columns. The opinions expressed are his own.

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