U.S. midterm elections: The other player, the U.S. Supreme Court

It's easier to get Ebola in Texas than it is to vote.

That's the wisecrack going around since the U.S. Supreme Court decided to let Texas implement a new photo ID law for voters in next month's midterm elections, even though a lower court had struck down the plan as discriminatory and unconstitutional, a judgment that still stands, pending appeal.

It is the latest example of how the conservative majority on America's top court is overseeing the retooling of the country's election laws, generally to the benefit of the Republican Party.

Naturally, there is some interest in that, just as there is in the reverse proposition: how national elections will affect the court.

But first, the retooling.

The Texas law imposes the strictest photo ID requirements for voters anywhere in the U.S. and would apply to voters at both the federal and state levels.

District Court Judge Nelva Gonzales Ramos found the kinds of photo ID the law requires were also those that Hispanics and African-Americans were less likely to own or be able to afford.

Since Hispanics and African-Americans mostly vote Democratic, it's understood that the judge was saying the law was designed by Texas Republicans with the specific purpose of discouraging Democratic voters.

She said the law was unconstitutional, deliberately discriminatory, and could disenfranchise as many as 600,000 voters on Nov. 4, in the midterm elections for Congress.

Texas appealed. And because the appeal won't be heard until after the midterms, Texas also sought permission to use the law for the November elections anyway.

That was the question asked of the Supreme Court: could Texas still go ahead and use the law even though, technically, it's illegal?

Just after five o'clock in the morning on Saturday, Oct. 18, the court said "yes". It gave no explanation.

So that's it. Texas will use a photo ID law that has been found to be deliberately, racially discriminatory, unconstitutional and likely to disenfranchise hundreds of thousands of voters.

One reason for the bizarre timing of the ruling (before dawn on a Saturday) was to give liberal Justice Ruth Bader Ginsburg time to write a dissent.

She did. And it was scathing.

Suppressing votes?

The best known liberal judge on the bench, Ginsburg endorsed all of the opinions of the lower court.

She also took care to quote the part of it that said the Texas legislature and governor — Rick Perry, who ran for the Republican presidential nomination two years ago — had "an evident incentive to 'gain partisan advantage by suppressing' the 'votes of African Americans and Latinos'"

Put in blunter terms, she meant the Supreme Court had allowed a potential presidential candidate (Perry is thinking of running again) and his friends to rob blacks and Hispanics in Texas of their voting rights.

Put in the bluntest terms, she seemed to be sounding the alarm that the Supreme Court had become a threat to democracy in America.

This is the latest round in a series of bouts over election laws that have pitted the five Republican-appointed justices on the Supreme Court against the four Democratic-appointed ones.

Citizens United vs. Federal Election Commission in 2010 struck down all restrictions on corporate and union spending in election campaigns, restrictions that had been in place since the Watergate scandal.

Shelby vs. Holder in 2013 rolled back part of the 1965 Voting Rights Act that had given federal protection against discrimination in voting laws, such as the one in Texas.

McCutcheon vs. Federal Election Commission, also in 2013, decided money had no corrupting influence on politics, and lifted the limit on how much an individual could contribute to a political campaign.

These are only the better known cases, and in each the decision was widely said to favour Republican political and campaign interests over Democratic ones.

Certainly, in each, the justices split five to four with the conservatives on one side and the liberals on the other.

It used not to be like that, but it's often that way now.

Locking in a majority

It is interesting that it is Justice Ginsburg who is raising her voice most loudly against the conservative domination of the court.

She is 81 years old, and she has said she has no plans to retire.

She has also said that's partly because she doubts even President Barack Obama could replace her with the kind of liberal she is.

In making these views known, she has joined in the newish game being played by pols of all hues here: What's going to happen to the high court over the next 10 years, and how will it change America?

On today's court, there are four justices over the age of 75; two are liberals, two are conservatives.

Chances are all four will leave the bench one way or another over the course of the next presidency (especially if it's a two-term presidency).

That means the next president could appoint more Supreme Court justices than any president since Richard Nixon (four).

If that is the case, the majority on the court — whether conservative or liberal — would be locked in for a couple of generations, past the middle of the century.

So the court itself may have a keener than usual interest in the outcome of the next few elections.

Conservatives on the bench might well have an interest in seeing the work they have done so far, and hope to do in future, protected by a new conservative majority.

Liberals likely have an interest in undoing what conservatives have done and pursuing their own agenda.

When you add it all up, it's easy to make an argument about why the conservatives on the court are sympathetic to looser campaign finance rules — and about why they have ruled in ways that lead to tighter voting restrictions, particularly as African-Americans and Hispanic voters tend to vote Democratic in presidential elections.

That's especially true in traditionally Republican strongholds where the combined black and Hispanic population is now in the majority.

Traditional strongholds like Texas.