Wednesday, November 09, 2016

I’ll have much more to say on this soon. But I just wanted to note this point, as I’ve made earlier, that control of the political branches means control of the Supreme Court. And a conservative Supreme Court will be much less protective of voting rights than a liberal one.

 I think it's not that simple. A conservative Supreme Court tends to protect a different set of voting rights than a liberal one does. Hasen's writings often focus on equality. Conservative courts tend to be less protective of equality in situations where equality conflicts with liberty. Conservative courts tend to be better than liberal ones at protecting voting rights where the issue is liberty. Liberal litigators need to learn to frame their arguments in terms of liberty, to win with such courts. This is something the ACLU, for example, has an excellent track record with.

"Elections shall be free and equal." That's Section 1 of Article II of my state constitution. I wrote my LLM thesis on such clauses, back in the day. Both prongs are important. Cases that argue for a kind of equality that sacrifices liberty aren't going to make much headway with a conservative court.

Citizens United was an example of such a conflict. In the interests of equality, the liberals wanted to give the government the power to censor books. The conservative court wasn't having any. The history of the First Amendment is a struggle against the kind of censorship of books that took place during Shakespeare's times.

For a different example,  the liberals have framed their opposition to voter ID in terms of equality, arguing, correctly, that such practices would have adverse impacts based on race and party and income and such factors. That didn't win the votes of Thomas or Alito or the late Scalia.
I wonder what might be accomplished with an attack on voter ID framed in terms of liberty.
Voter ID infringes on the liberty of the white rural trump voter, to vote freely without a lot of government red tape. I wonder how the Roberts Court would respond to such arguments. Granted we made such aruments in Crawford in the Privacy Project brief, and the Rutherford Institute did an even better job in their amicus, and the court ignored those. But I'd like to see someone like the Rutherford Institute bring a voter ID case. 

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