Scalia Was No Fan Of Voting Rights. Will Gorsuch Follow His Lead?

As Judge Neil Gorsuch faces his confirmation hearings to be the next Supreme Court Justice, the Trump White House and Republican Senators continue to say that he is a strong conservative in the mold of Justice Antonin Scalia, who he would replace. If Judge Gorsuch’s views on the constitutional right to vote are the same as Justice Scalia’s, however, there is great cause for concern.

The right to vote is the most important and fundamental right we enjoy. It provides the foundation for our democracy.

Yet Justice Scalia’s rulings were extremely restrictive when it came to voting rights. For instance, in 2008, when the Court refused to strike down Indiana’s strict voter ID law, Justice Scalia wrote a separate opinion to complain that the Court’s main opinion did not go far enough. While the Court’s ruling upholding the law left the door open to future lawsuits with better evidence, Justice Scalia would have closed off any future challenges to a voter ID requirement. He said that it did not matter if a handful of voters might find it more difficult to participate on Election Day. The harm to the constitutional right to vote for any particular individual was no big deal if the law did not impose a burden on the electorate as a whole.

That is, although several Justices on the Court were willing to allow future plaintiffs to bring better evidence of the burdens they faced – which they have done successfully in subsequent lawsuits – Justice Scalia would have ruled that a voter ID law was always perfectly constitutional, no matter the disenfranchisement it might cause for some voters. The state’s role in administering an election was more important than the individual’s right to vote.

The state’s role in administering an election was more important than the individual’s right to vote.

That’s a far cry from the approach the Court used in the 1960s when it first recognized a fundamental, constitutional right vote. Back then, the Court consistently applied the highest level of judicial scrutiny to a law that burdened voting rights, even if only a few individuals suffered the effects. Thus, Virginia’s poll tax was unconstitutional even if it impacted only a few people because it violated the foundations of our democracy to deny the right to vote to someone who could not pay a minimal tax.

To improve our democracy, we need to return to the days when the Court vigorously protected the constitutional right to vote. In the past decade the Court has issued several rulings that have harmed voters. In the process, the Court has allowed states to pass restrictive voting laws, often for partisan gain. For instance, many states have enacted undue burdens on voter registration, cutbacks to early voting opportunities, and stricter voter ID laws.

A judicial approach that strongly values the individual right to vote would go a long way to stopping some of these partisan overreaches. Politics should not dictate election laws.

Judge Gorsuch has not ruled on many voting rights cases as a lower court judge. Thus, although we can speculate based on his overall judicial philosophy, we do not know much about his views on these issues.

Senators should therefore ask Judge Gorsuch whether he agrees with Justice Scalia’s views on the constitutional right to vote. Senators should ask if is willing to consider the individual burdens of a law or if instead he favors Justice Scalia’s approach to ignore individual hardships if an election rule does not hurt too many people.

To improve our democracy, we need to return to the days when the Court vigorously protected the constitutional right to vote.

They should ask him whether he favors the stronger protection of the right to vote from the 1960s, as in the case striking down Virginia’s poll tax, or instead if he thinks the Court’s more recent restrictive approach is correct.

They should ask how much deference the Court should give to states in their election laws.

They should ask him whether he thinks politics should infiltrate the rules of our democracy.

And they should ask him how much he values the fundamental, constitutional right to vote.

If Judge Gorsuch answers these questions honestly and fully, we will know if he is truly like Justice Scalia with respect to the right to vote. And if he is, we can expect many years of restrictive rulings that will hurt individual voters and help to sustain partisan election laws. That would be particularly unfortunate for the proper functioning of our democracy.

Joshua A. Douglas is a law professor at the University of Kentucky College of Law who specializes in election law and voting rights. He is the co-editor of “Election Law Stories.” Follow him on Twitter @JoshuaADouglas.

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