President Donald TrumpDonald TrumpTexas announces election audit in four counties after Trump demand Schumer sets Monday showdown on debt ceiling-government funding bill Pennsylvania AG sues to block GOP subpoenas in election probe MORE’s pick of Neil Gorsuch to succeed the late Supreme Court Justice Antonin Scalia shows the rule of law is back in style. Gorsuch considers the Constitution a document that limits the power of government, not as a mere suggestion to be argued around. For that, Trump’s pick is delightfully restorative.
The Gorsuch pick came just in time. A mix of cases are heading to the Supreme Court and will impact the federal design over elections. From voter ID to redistricting to obligations to keep clean voter rolls, the Court is primed to decide how we vote in the 21st century.
In an array of voter ID cases, the Court may decide if the treasured Voting Rights Act has morphed into a tool not to protect civil rights, but to protect the interests of Democrats. North Carolina enacted measures designed to preserve the integrity of elections, including voter ID and limits on the registration of voters on Election Day before their eligibility could be verified. Newfangled theories of the Voting Rights Act led one appeals court to graft disparate impact tests onto the law that formerly required actual victims of racial discrimination in order to win a case.
That appeal is now moving toward an evenly divided Supreme Court — divided no more when Gorsuch is confirmed.
Make no mistake, Gorsuch will be confirmed. The vacancy on the court drove Catholic and evangelical Protestants to the polls in places like Pennsylvania, Michigan, Ohio, Wisconsin and Iowa. The prospect of picking a man like Neil Gorsuch was a prime mover behind Trump winning the White House. The Republicans will win this fight even if they must use the nuclear option.
Neil Gorsuch is Trump’s grandest promise to a supportive electorate and will not be stopped.
Naturally, the Washington establishment will be reflexively opposed to Gorsuch. One former Justice Department colleague of Gorsuch told me, “he understands that the radical expansion of the federal bureaucracy is reaching and often exceeding its permissible limits, and that deference to that bureaucracy is frequently unwarranted. He is the dream of conservative thinkers and will bring great honor to the Court.”
When it comes to how states run their own elections, Gorsuch should be refreshing. Consider how states ensure non-citizens aren’t registering to vote. The court may hear if states can ensure only citizens are voting — again.
In 2013, the court held that states could petition the federal commission that creates the federal voter registration forms to include state citizenship rules. In that ruling, the late Justice Scalia paved the way for states to verify citizenship, but the Obama Justice Department lawlessly interfered and blocked these efforts — going so far to as refusing to defend the independent federal agency that had approved state citizenship verification. Sound familiar?
A federal appeals court sided with the Obama DOJ and left states unable to verify citizenship of voters using the federal forms in the 2016 election.
Ohio has been blocked from removing inactive voters from the rolls, another issue that is working its way to the Supreme Court. In 2012, Cincinnati election official Melowese Richardson exploited bad voter rolls and cast four ballots for President. The power of Ohio to keep rolls clean, amazingly, is a case the Court may decide after Gorsuch is confirmed.
Despite warnings from the court that race cannot be the “predominant” factor when drawing legislative lines, we have seen quite the opposite.
The Voting Rights Act has been leveraged by the Obama DOJ and activist groups to pack racial minorities into ink blot jurisdictions to distribute partisan advantage. Radical new theories of civil rights have emerged in these legislative plans, such “black-brown” political coalitions being entitled to legislative seats under the Voting Rights Act. These new tools to bolster Democratic Party power using civil rights litigation will also reach the Court.
Race, power, federalism, state sovereignty and more race. This is the battlespace that makes elections and how they are run a year-round fight in the courts, not just something experienced on Election Day. Neil Gorsuch, unlike the nominees of the previous president, has a sensitivity to the unique, precious and delicate compromise that created the greatest constitution the world has ever seen.
J. Christian Adams the President and General Counsel for the Public Interest Legal Foundation and a former Justice Department lawyer.
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