The high court could add to the Republicans' woes. | John Shinkle/POLITICO The GOP's Supreme Court hangover

For Republicans still nursing a hangover from the 2012 election, the Supreme Court is only adding to the throbbing pain.

GOP leaders have been scrambling to refocus the party around economic issues and a more inclusive message that might win some of the voters who fled from their candidates last year.


But the courts move more slowly, and key issues that electrified the Republican base over the past few years are only now about to go before the justices — though they’re precisely the kinds of issues that many in the GOP are eager to put behind them.

The Supreme Court is hearing arguments Wednesday morning on a case that could strike down a key part of the landmark Voting Rights Act of 1965 — a law venerated by civil rights advocates.

Next month, the justices will take up a pair of cases that could make history by producing a federal constitutional right to same-sex marriage.

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The high court will also wade into the controversy over voter ID laws that civil rights groups and many Democrats contend are thinly veiled efforts to limit the voting strength of Latinos and African Americans.

And, as if that weren’t enough, the justices are expected at any moment to issue a major ruling on affirmative action in higher education.

It’s a list that includes many of the issues some Republicans warn ran the party aground last November — and which could eventually prove to be the party’s death knell.

“If Republicans want to become the Whigs, they should stick to their guns on all of these issues,” quipped John Lehman, a Navy secretary under President Ronald Reagan and an adviser to Mitt Romney’s 2012 presidential bid.

“The core [GOP] message should include genuine equal rights for everybody. … Certainly, Republicans should be casting their net to include minorities and to include real equal voting access and voting rights and not code words for limiting access by minority groups,” Lehman said.

The Republican Party’s position isn’t monolithic on any of the hot-button social issues before the court. But on many of the points the court is considering, Democrats appear to be more aligned with the minority and young voters the GOP says it wants to court.

On the Voting Rights Act, what was once widespread support among congressional Republicans has been traded largely for silence and for outright hostility from many of the GOP-led states subject to the act’s requirement that all changes in election districts and voting procedures get approved by the Justice Department or federal judges. Some analysts have blamed the backlash to so-called voter ID laws with boosting minority turnout and actually adding to President Barack Obama’s reelection tally.

On same-sex marriage, House Republican leaders are at the forefront of the effort to preserve the Defense of Marriage Act, the 1996 law that forbids federal benefits for same-sex unions. Over the objections of House Democrats, Speaker John Boehner (R-Ohio) used House funds to retain top Supreme Court litigator Paul Clement to persuade the justices to keep the central provision in DOMA on the books.

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Some Republicans have been saying privately that losing that case and having the court find a federal right to same-sex marriage would be the best outcome for the party politically, by taking the issue off the table permanently without alienating social conservatives in the GOP base. Meanwhile, more than 80 prominent Republicans, including former Govs. William Weld, Christie Todd Whitman and Jon Huntsman, have signed onto a brief urging the Supreme Court to find such a constitutional right.

However, only two of those backing marriage rights for gay and lesbian couples are current members of Congress: Reps. Richard Hanna of New York and Ileana Ros-Lehtinen of Florida. (Neither responded to a request for comment for this story.)

Some potential 2016 Republican presidential candidates said they don’t believe the GOP needs to shift on any of the issues before the court in order to appeal to minorities and younger voters.

“Unlike the Democratic Party, we’re not trying to divide the American people,” Louisiana Gov. Bobby Jindal said Monday when asked by POLITICO about the race-related and gay rights issues the court is tackling. “The reality is as Republicans we want to unify the country. … We don’t think demographics is destiny. We treat everybody as an individual.”

Jindal, who’s of Indian descent, suggested that explicit GOP attempts to cater minority groups would undermine the party’s brand.

“We don’t need two Democratic parties in our country. I would resist efforts in our party to try to just copy Democratic principles just because they were successful in this last election. I think that one of the most important conservative bedrock principles is we treat the dignity of the individual; we don’t view them as members of special interest groups,” Jindal said.

Wisconsin Gov. Scott Walker said that by focusing intently on economic issues, Republicans can make advances even if their social-issue views aren’t totally aligned with voters they’re courting.

“People may agree or disagree with my position on this social issue or that social issue, as long as I’m not rubbing it in their face all the time and instead talking about jobs, balancing the budget in a way that relevant to their lives, that’s where the real focal point is,” Walker said on the sidelines of the POLITICO State Solutions Conference in Washington last week.

“The Court’s going to do what the Court’s going to do. As equal branches of government, we can’t — nor should we — tell them what they can or can’t do because of a political reason. I just think going into the next elections for governor and eventually president and other offices, we’ve just got to show [voters] where our focus is at and not let up,” Walker added.

But a strictly economic message can‘t alone bridge the demographic gulf the party faces, said Tennessee Gov. Bill Haslam outside the same conference.

“I don’t think you can ignore the other issues,” Haslam said. “Those are things that people feel most passionate about — people on both sides, obviously. I just think that Republicans have not done a good job of saying we understand that there’s a wide range of views and there’s certainly principles that we’re not going to give on, but we understand it’s a very diverse country.”

The Voting Rights Act case the justices are slated to take up Wednesday morning displays some of the cross-cutting tensions the GOP faces on the racially charged issue. The case focuses on the viability of the provision that requires pre-approval of all changes to voting procedures, such as new election districts, voter identification requirements or even polling place locations. That requirement, known as Section 5, applies in all or part of 16 states.

At the federal level, Republicans have been publicly supportive of the Voting Rights Act from its passage in 1965 until its most recent reauthorization in 2006. That renewal passed the House, 390-33. In the Senate, opponents were shut out, 98-0.

President George W. Bush hosted the Congressional Black Caucus in the Rose Garden when he signed the reauthorization.

But as conservative forces grew stronger in the party in recent years, GOP support for the measure seems to have cooled.

Only two Republican members of Congress, Reps. Jim Sensenbrenner of Wisconsin and Steve Chabot of Ohio, signed onto a brief defending the law in its current trip to the Supreme Court. Both men played key roles in the 2006 reauthorization.

By contrast, the ledger of states opposing the so-called pre-clearance aspect of the law has grown. In a 2009 case, only Georgia and to a lesser extent Alabama challenged the law head-on.

Now, five more states, Alaska, Arizona, South Carolina, South Dakota and Texas, are asking the court to strike down the pre-clearance portion of the law. All the states are GOP-led and all are among those subject to the pre-approval process, which they contend is burdensome and unfair. (Arizona did an about-face, backing the law in 2009 but calling it unconstitutional now.)

Those states argue that the rampant racism and defiance in the South that led to the unusual measure no longer exists and that by, many measures, the “covered” states have more political participation by minorities than other states that don’t have to follow the rule.

The Republican National Committee, which has ordered up a report examining in part why the party fared poorly with minority voters last fall, did not respond to several requests for comment on its view on the Voting Rights Act challenge.

However, a GOP spokeswoman circulated to journalists a story from the Hill reporting that RNC Chairman Reince Preibus is on a West Coast swing courting Asian and Latino voters and that RNC is also hosting two African-American outreach events this week.

Asked about the relative silence on the issue from the national GOP, Alabama Solicitor General John Neiman said: “We see on a day to day basis the vivid realities and the vivid burdens that Section 5 places on state government. That’s not as vivid, I suppose, to our federal representatives.”

“Ask yourself: What exactly is the political upside for someone working in Washington in taking a stand on this issue, when the downside is that someone out there on the Internet or otherwise will accuse them of being a racist for taking that position?” Neiman said at a Heritage Foundation forum last week.

A top Justice Department official in the Reagan administration, Michael Carvin, said GOP lawmakers backed the renewal in 2006 and are silent now in part because the law benefits Republicans electorally by concentrating minorities in a small number of districts.

“Their purely partisan interests are very much in favor of preserving Section 5 and not allowing you to spread minorities out where they become integrated and threaten them,” Carvin said at the Heritage panel. “How many white Democrats are left in the seven Confederate states?”

Carvin also offered one other explanation for the near silence from the national GOP. “They just don’t want snarky articles from POLITICO about how they’re not sufficiently attuned to kumbaya politics and reaching out to minorities,” he said.

Not all the states covered in all or in large part by the pre-clearance rules weighed in with the justices. Virginia, under Republican Gov. Bob McDonnell and conservative firebrand Attorney General Ken Cuccinelli, kept mum. So did Jindal’s Louisiana, though it backed the law in 2009.

GOP-led Mississippi, which is fully covered by the pre-clearance requirement, backed the law in 2009 and again in the current fight.

The Democratic National Committee also failed to respond to requests for comment for this story. An official there previously told POLITICO that the party fully supports the Voting Rights Act but likely would not get formally involved in the litigation in order to avoid making the issue appear partisan.

Still, the Justice Department is aggressively defending the law and President Barack Obama isn’t leaving any doubt about where he stands on the point.

In an interview last week, Obama said rolling back the Voting Rights Act would mean more hassles for minorities at the ballot box and could mean more laws like the voter ID measures many states attempted to implement before last year’s election.

If pre-clearance were struck down, “generally speaking, you’d see less protection before an election with respect to voting rights,” Obama told Sirius XM radio’s Joe Madison. “People could keep on coming up with new schemes each election. Even if they were ultimately ruled to violate the Voting Rights Act, it would be hard for us to catch those things up front to make sure that elections are done in an equitable way.”

However, Obama seemed aware that there’s a significant chance the justices will knock out that part of the law, and he seemed ready to endorse a national polling-access standard that could aid voters. “I think it’s still possible, obviously, for us to make sure that everybody’s able to exercise their rights,” he said.