The New Nullification Movement
On June 25, the Supreme Court invalidated a key section of the Voting Rights Act, ruling that states with the worst history of racial discrimination in voting no longer had to clear their voting changes with the federal government. That decision has set off a new wave of disenfranchisement, primarily in the South, with eight states previously covered by the VRA passing or implementing new voting restrictions over the past four months.
A week before the Shelby County v. Holder ruling, the Supreme Court decided another voting rights case, Arizona v. The Inter Tribal Council of Arizona, which garnered few headlines but is also having major ramifications. In a 7–2 opinion written by Justice Antonin Scalia, who famously called the Voting Rights Act a “perpetuation of racial entitlement,” the Court found that Arizona’s proof-of-citizenship law for voter registration violated the 1993 National Voter Registration Act (NVRA). With a few important caveats—for example, that states have the power to set voter “qualifications” for elections—the ruling seemed like an unlikely voting rights victory from a Court known as markedly hostile to the cause.
The case stemmed from 2004, when Arizona voters approved Proposition 200, a stringent anti-immigration law that included provisions requiring proof of citizenship to register to vote and a government-issued photo ID to cast a ballot. Last year, the US Court of Appeals for the Ninth Circuit blocked the proof-of-citizenship requirement, which it said violated the NVRA. Under the 1993 act, which drastically expanded voter access by allowing registration at public facilities like the Department of Motor Vehicles, those using a federal form to register to vote must affirm, under penalty of perjury, that they are US citizens. More than 24 million people used that federal form to register in 2008. Arizona’s law, the Ninth Circuit concluded, violated the NVRA by requiring additional documentation, such as a driver’s license, birth certificate, passport or tribal forms. According to a 2006 study by the Brennan Center for Justice, at least 7 percent of eligible voters “do not have ready access to citizenship documents.” The Supreme Court affirmed the lower court’s ruling, finding that states like Arizona could not reject applicants who registered using the NVRA form.
Now Arizona and Kansas—which passed similar proof-of-citizenship laws in 2011—are arguing that the Supreme Court’s decision applies only to federal elections and that those who register using the federal form cannot vote in state or local ones. The two states sued the US Election Assistance Commission in August, arguing that the NVRA form should include a proof-of-citizenship requirement, and both are setting up a two-tiered system of voter registration, which could disenfranchise thousands of voters and infringe on state and federal law. It’s a strategy that, if successful, is all but certain to spread to other states and entrap more unsuspecting voters.
Such tactics recall the days of segregation and the Supreme Court’s 1896 “separate but equal” ruling in Plessy v. Ferguson. “These dual registration systems have a really ugly racial history,” says Dale Ho, director of the ACLU’s Voting Rights Project. “They were set up after Reconstruction alongside poll taxes, literacy tests and all the other devices that were used to disenfranchise African-American voters.”
In the Jim Crow South, citizens often had to register multiple times, with different clerks, to be able to vote in state and federal elections. It was hard enough to register once in states like Mississippi, where only 6.7 percent of African-Americans were registered to vote before the passage of the Voting Rights Act of 1965. And when the federal courts struck down a literacy test or poll tax before 1965, Southern states still retained them for state and local elections, thereby preventing African-American voters from replacing those officials most responsible for upholding voter disenfranchisement laws.
The Voting Rights Act ended this dichotomy between federal and state elections by prohibiting racial discrimination in all elections. Section 5 of the act, which the Supreme Court eviscerated earlier this year, prevented states with a long history of voting discrimination, like Mississippi, from instituting new disenfranchisement schemes. It was Section 5 that blocked Mississippi from implementing a two-tiered system of voter registration following passage of the NVRA in 1993, which the state claimed applied only to federal elections. (A similar plan was stopped in Illinois under state law. An earlier Mississippi system of dual registration for state and municipal elections, dating back to 1890, was finally invalidated in the 1980s as intentionally discriminatory under Section 2 of the VRA.) Arizona, which was previously subject to Section 5 based on a well-documented record of discrimination against Hispanic voters and other language minority groups, is making virtually the same rejected argument as Mississippi in the 1990s, but thanks to the Roberts Court, it no longer has to seek federal approval to make the voting change.
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