Clinton bizarrely scapegoats Supreme Court for the 2016 election

Clinton bizarrely scapegoats Supreme Court for the 2016 election
Hillary Clinton

Hillary Clinton lost the 2016 election because she spent virtually no time or money on swing states like Wisconsin, even as she wasted millions of dollars on voter turnout in states that she was already guaranteed to win or lose (like turning out voters in New Orleans and Chicago, even though she knew she would lose Louisiana and win Illinois no matter what). The net result of her foolishness was that she failed to carry most swing states, and thus lost in the all-important Electoral College, even as she got more popular votes than Donald Trump.

But she won’t accept responsibility for her mistakes. Instead, she has a scapegoat for her loss: the Supreme Court. She claims a Supreme Court ruling cost her the election. But in reality, it didn’t affect the electoral vote count at all, and hardly changed Trump’s victory margin in swing states like Wisconsin.

CNS News reported that Clinton “blamed the U.S. Supreme Court for gutting the Voting Rights Act: ‘I was the first person who ran for president without the protection of the Voting Rights Act,’ Clinton said.” In reality, most of the Voting Rights Act remains in force, and people can bring lawsuits under Section 2 of the Voting Rights Act if state laws have the purpose or effect of discriminating against racial or language minorities. The Supreme Court struck down only one section of the Act in Shelby County v. Holder (2013), a provision that treated some states differently than others.

Clinton falsely claims she lost in Wisconsin due to its voter ID law, which went into effect in 2015 after the Supreme Court declined to block it. She claimed:

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It made a difference in Wisconsin, where the best studies that have been done said somewhere between 40,000 and 80,000 people were turned away from the polls because of the color of their skin, because of their age, because of whatever excuse could be made up to stop a fellow American citizen from voting.

This is the sheerest nonsense. First, turning people “away from the polls because of the color of their skin” would be an obvious, easily-remedied, and readily-punishable violation of the Fifteenth Amendment — which bans racial discrimination in voting — and the provisions of the Voting Rights Act that remain in force to this day. Any voter blocked from voting based on her race could obtain an injunction ordering state officials to count her vote. Any state official who did this could be sued individually for compensatory and punitive damages for violating clearly established constitutional rights. Also, any lawyer who sues that state official on behalf of a voter blocked from voting based on her race could recover hundreds of thousands of dollars in attorneys fees from the state under the Civil Rights Attorneys Fees Award Act of 1976 (42 U.S.C. § 1988).

Second, turning away eligible voters “because of their age” would be an obvious, easily-remedied, and readily punishable violation of the 26th Amendment. It guarantees that “the right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” Any state official who violates this right can be hit by an injunction from a court and ordered to pay punitive and compensatory damages, under 42 U.S.C. § 1983.

Most importantly, voter ID laws have virtually no effect on voter turnout, and Wisconsin’s voter ID law did not make it difficult to obtain voter ID or limit access to voter ID based on race or age. Indeed, Wisconsin did not charge any fee for voter ID at all, much less a fee that blacks might find more difficult to afford than whites. As CNS News notes:

Acceptable voter identification in Wisconsin includes an in-state driver’s license or a state ID card; the latter is available free of charge at Wisconsin DMV offices, if the would-be voter produces documents such as a certified birth certificate, a Social Security card and a utility bill or cell phone bill. Voters can also use military and veterans’ IDs, certain two-year student IDs and tribal IDs. … Even those who lack a valid voter ID are allowed to cast provisional ballots, which will be counted if the voter produces an acceptable ID by 4 p.m. on the Friday after the election.

Research finds that voter ID laws don’t reduce turnout. As even Rick Hasen, a leading critic of voter ID laws, concedes, a new study by the National Bureau of Economic Research “finds voter ID laws have little to no effect on voter turnout.” In it, researchers Enrico Pantoni and Vincent Pons found that voter ID “laws have no negative effect on registration or turnout, overall or for any group defined by race, gender, age, or party affiliation.” Their paper is titled, “Strict ID Laws Don’t Stop Voters: Evidence from a U.S. Nationwide Panel, 2008-2016.”

Professor Hasen thinks GOP legislators often had bad motives for enacting voter ID laws, but the evidence is now clear: They don’t actually deter many citizens from voting, or have a significant effect on turnout by race or age. (Hasen’s blog post at the widely-read, liberal-leaning Election Law Blog doesn’t take issue with the NBER study’s methodology or accuracy).

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Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for CNS News and has appeared on C-SPAN’s “Washington Journal.”


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