Bloomberg Law
Nov. 9, 2016, 10:46 PM

Did New Voter Laws Tip the Election?

Gabe Friedman

On Tuesday, Donald Trump was elected President despite trailing his opponent in nearly every poll.

One question is whether the election result was affected by the U.S. Supreme Court’s 2013 decision inShelby County v. Holder? In the case, a 5-4 majority of the court found Section 4 of the Voting Rights Act to be unconstitutional. Section 4 was the formula that determined which state and local governments needed to obtain approval from a federal court or the U.S. Justice Department before changing their voter laws.

The ruling paved the way for some states, including ones Trump won such as Wisconsin, to pass more restrictive voter laws, changing when a ballot must be postmarked in order to count, for example. But did those laws mean voters who might have supported Clinton stayed home because they were unable to vote?

“It’s pretty hard to say at this point,” said Michael Kang, a professor at Emory University School of Law who studies elections. “For something like this to matter in terms of affecting a big presidential election, it has to affect a lot of votes. It’s not clear that it would affect enough votes that it would affect the outcome in a particular state.”

That sentiment was repeated by election law specialist Rick Hasen, a professor at U.C. Irvine School of Law, who sent over a blog post he wrote about this very question:

If restrictive voter id or other laws were enough to affect the presidential outcome, they would have had to have an effect on the electoral college outcome in a state that passed these laws. As of Wednesday morning, the only candidate I see in this category potentially is Wisconsin, where Donald Trump has a 27,000 vote lead. Were there more than 27,000 people (or whatever the margin will be after provisionals/absentees processed) who would have voted for Clinton but for the restrictive voter id law (with its minor softening through court-ordered DMV-produced temporary ids)? What about other laws that the Wisconsin legislature passed, such as on the treatment of absentee ballots? We will have to let the political scientists sort this out. I don’t think anyone can eyeball this to know.

Both Kang and Hasen said whether theShelbydecision tipped the election is less important than whether it unnecessarily disenfranchised any number of voters, even if it was less than a substantial amount.

We put the same question to Bert Rein, of Wiley Rein, who argued on behalf of Shelby County, Alabama that the Voting Rights Act was unconstitutional.

“You know, I saw that in Rick Hasen’s blog,” he acknowledged.

Rein laid out the issue as he sees it: “Were those changes sufficiently impactful to really influence the outcome? I don’t know the answer. Some people would say sure because it dissuaded some Hispanic and other voters who would have voted. But maybe some illegals would also have voted and that’s not good.”

The main impact of Shelby was that it allowed some states to more rapidly change voter laws, he said.

“I’d love to take credit for it and then Donald Trump could write me a nice letter,” said Rein.