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.
* * *
The harmfulness of proof-of-citizenship laws would be exacerbated under the proposed two-tiered system of voting. More than 30,000 voters were prevented from registering in Arizona after its proof-of-citizenship law passed in 2004; less than one-third subsequently registered successfully. The number of voters registered by community-based drives in Phoenix’s Maricopa County plunged from 24 percent in 2004 to 6 percent in 2007. In Kansas, 17,000 voters have been blocked from registering this year—a third of all applicants—because the DMV doesn’t transfer citizenship documents to election officials. Not only are thousands of eligible citizens prevented from registering because of proof-of-citizenship laws, but running elections under a dual registration system is costly and chaotic for election officials, as well as confusing for voters. The ACLU has vowed to sue Kansas if the state continues its noncompliance with federal law.
Proof-of-citizenship laws and the new two-tiered voting scheme are the brainchild of Kansas Secretary of State Kris Kobach, who has done more than just about anyone to stir up fears concerning the manufactured threat of voter fraud. Kobach, 47, was a counsel to Attorney General John Ashcroft during the George W. Bush administration and is considered a rising star within the GOP. He co-wrote Arizona’s “papers, please” immigration law and inspired Mitt Romney’s nonsensical “self-deportation” immigration plan. (Though Romney later disavowed the policy in the general election, Kobach persuaded the GOP to adopt self-deportation as a key plank of the party’s immigration platform at the 2012 convention.) After the 2008 election, Kobach helped the American Legislative Exchange Council, a major proponent of voter ID restrictions, to draft model legislation for proof-of-citizenship laws based on Arizona’s bill, which were adopted in three states—Alabama, Kansas and Tennessee—following the 2010 election.
Kobach has fused anti-immigrant hysteria with voter-fraud paranoia. To justify his state’s new voting restrictions (Kansas also has a strict voter ID law), Kobach told the Huffington Post that “we identified 15 aliens registered to vote,” but he seems unconcerned that 17,000 eligible Kansans have been prevented from registering. Moreover, there’s no evidence that these fifteen alleged noncitizens actually voted, just as there’s no evidence that dead people are voting in Kansas—another erroneous claim Kobach repeatedly makes. Kansas City Star columnist Yael Abouhalkah wrote earlier this year that Kobach “has a way of lying” about the threat of voter fraud.
Kobach claimed in 2011 that sixty-seven noncitizens had illegally registered—out of 1.7 million on the state’s voter rolls—but “was unable to identify a single instance of a non-citizen illegally casting a vote, or any successful prosecution for voter fraud in the state,” according to the Brennan Center. Why would noncitizens, who are presumably in the United States to work, risk deportation and imprisonment in order to cast a ballot? Kobach once suggested in a radio interview that perhaps their coyotes were paying them to vote, which defies all logic.
There’s also no evidence that using the NVRA’s form to register leads to a higher incidence of voter fraud. “Nobody has ever been prosecuted for using the federal form to register to vote as a noncitizen,” Nina Perales, vice president of litigation at the Mexican-American Legal Defense Fund, told me earlier this year.
* * *
In reality, the two-tiered system of registration being set up in Arizona and Kansas has far less to do with stopping voter registration fraud (which, as shown, is very rare in both states) than with “nullifying” federal laws that Republicans don’t like, such as Obamacare. There’s a symmetry between shutting down the government and creating separate and unequal systems of voting. It’s a strategy that dates back to the antebellum South, when fierce segregationists like John C. Calhoun tried to prevent the federal government from interfering with slavery and taxing the region.
In 1828, Calhoun, then vice president under John Quincy Adams, published a manifesto arguing that states had a right to reject federal laws they deemed unconstitutional. Four years later, in November 1832, his home state of South Carolina, which Calhoun later represented in the Senate, did just that at a nullification convention, refusing to pay agricultural tariffs issued by the federal government in 1828 and 1832. South Carolina threatened armed resistance and secession if the government attempted to collect. Calhoun, “the Great Nullifier,” died in 1850, but his radical ideas inspired the South to bolt the Union in 1861.
The ideology of nullification didn’t die with the defeat of the South in the Civil War, however; it lived on in memory and formed the basis of the Southern Democrats’ “massive resistance” to desegregating public schools and other civil rights laws in the 1950s and ’60s. (South Carolina, incidentally, was the first state to exit the Union, and the first to challenge the constitutionality of the VRA before the Supreme Court.) The right’s response to the election of the first black president—specifically, the creation of the Tea Party—resurrected nullification as a motivating principle of extreme political conservatism.
Earlier this year, Mississippi lawmakers proposed creating a nullification committee in the state legislature to oppose federal regulation of guns and healthcare, similar to a state commission that blocked desegregation efforts in the 1950s. North Carolina Tea Party groups recently held a “Nullify Now” rally in Raleigh. Numerous state legislatures, from South Carolina to Oklahoma, have passed bills to nullify Obamacare. These are not random instances, but evidence of a disturbing trend.
The GOP is whiter, more Southern and more conservative than ever before, and the “Southernization” of the party, in both style and substance, extends west to states like Arizona and Kansas, which are embracing voter suppression tactics pioneered by the Jim Crow South. The party of Lincoln has “become the party of Calhoun,” Sam Tanenhaus wrote in The New Republic earlier this year. When it comes to voting rights and so many other issues, the Confederates and Dixiecrats of yesteryear are the Republicans of today.
Don’t miss Ari Berman’s review of Gary May’s Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy, also in this issue.