Ari Berman | The Nation

Marchers during the fiftieth anniversary commemoration of the March on Washington, August 24, 2013. (Reuters/James Lawler Duggan)

During this week’s events commemorating the fiftieth anniversary of the March on Washington, the fight for voting rights emerged as a central cause for the civil rights movement. In 1963, few blacks could vote in the states of the Old Confederacy. In 2013, there’s a black president, but the right to vote is under the most sustained attack—in the states and the courts—since the passage of the Voting Rights Act in 1965.

At the official commemoration today, Presidents Obama, Clinton and Carter voiced their dismay over the Supreme Court’s decision gutting the VRA and the rush to implement new voter suppression laws in seven Southern states since the ruling.

“A great democracy does not make it harder to vote than to buy an assault weapon,” said Clinton, referencing a Texas voter ID law that accepts a concealed carry permit, but not a student ID, to cast a ballot.

“I believe we all know how Dr. King would have reacted to the new ID requirements to exclude certain voters, especially African-Americans,” said Carter. “I think we all know how Dr. King would have reacted to the Supreme Court striking down a crucial part of the Voting Rights Act just recently passed overwhelmingly by Congress.”

We must challenge “those who erect new barriers to the vote,” said Obama.

Voting rights issues were even more front and center at Saturday’s “Realize the Dream” rally and march.

“This morning, we affirm that this struggle must, and will, go on in the cause of our nation’s quest for justice—until every eligible American has the chance to exercise his or her right to vote, unencumbered by discriminatory or unneeded procedures, rules, or practices,” said Attorney General Eric Holder, who just filed a suit challenging Texas’s voter ID law under Section 2 of the Voting Rights Act.

“I gave a little blood on that bridge in Selma, Alabama, for the right to vote,” said Congressman John Lewis, who was nearly killed during the “Bloody Sunday” march in 1965. “I am not going to stand by and let the Supreme Court take the right to vote away from us.”

Lewis spoke for everyone at the rally when he said, “We must say to the Congress: fix the Voting Rights Act.”

Any congressional fix to the VRA will require bipartisan support and no Republicans spoke at either of the two major March on Washington commemorations. But Representative James Sensenbrenner (R-WI) did promise congressional action to save the VRA by the end of the year at a meeting of black Republicans sponsored by the RNC. Said Sensenbrenner:

“I am committed to restoring the Voting Rights Act as an effective tool to prevent discrimination, more subtle discrimination now than overt discrimination. This is going to be difficult because of the way the court worded its decision, but so far this effort has been bipartisan and bicameral. A month and a half ago, Congressman John Lewis and I went over and testified before the Senate Judiciary Committee on how important the Voting Rights Act is. At the end of the testimony, Mr. Lewis turned around and put his arm on my shoulder and said ‘Jim, you are my friend and my brother.’ And that was one of the highest compliments that I have received in almost 46 years in elected public office.

Senator Leahy said I was a civil rights icon. I said, ‘no, I’m not an icon, I’m a mechanic.’ And my job is to fix the Voting Rights Act. Now, the first thing we have to do is to take the monkey wrench that the court threw in it out of the Voting Rights Act and then use that monkey wrench to be able to fix it so that it is alive, well, constitutional and impervious to another challenge that will be filed by the usual suspects…. This is something that has to be done by the end of the year so that a revised and constitutional Voting Rights Act is in place before the 2014 election season, both primaries and general elections.”

This is probably wishful thinking on Sensenbrenner’s part; this week illustrated how few champions of civil rights there are in the GOP today. But voting rights advocates have developed a five-part strategy for protecting the franchise.

Number one: Challenge discriminatory voting laws in the courts through the remaining provisions of the VRA or under state constitutions. This is already happening in Texas and North Carolina.

Number two: Organize locally to register new voters and help them comply with the onerous new voting changes by making sure, for example, that everyone who needs an ID can get one. That’s a major task in places like North Carolina (318,000 registered voters don’t have government-issued ID) and Texas (600-800,000 registered voters without ID.) The work of coalitions like the Moral Monday movement in North Carolina is vital in this regard. They held rallies in the state’s thirteen congressional districts today advocating for voting rights.

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Number three: Lobby Congress to pass a new VRA. The House and Senate held the first hearings on the VRA last month. The next step is for legislation to be introduced, which voting rights groups can then rally around.

Number four: Expand voting rights in states where there is a more favorable political climate, like Colorado, which earlier this year lengthened early voting and adopted Election Day voter registration. According to the Brennan Center, ten states have passed new voting changes this year that make it easier to vote (what a revolutionary concept).

Number five: Mobilize voters for the 2014 elections. The potential backlash against voter suppression laws could be a major factor in the midterms, like it was in 2012, when the black vote surpassed the white vote for the first time in presidential history. “Will we get a new Voting Rights Act map in this Congress?” the Rev. Al Sharpton told me recently. “Probably not. But it can be a central issue in the midterm elections to galvanize the vote, like we did last year.”

Gary Younge on why Dr. King’s dream is still misunderstood.

Attorney General Eric Holder. (AP Photo/J. Scott Applewhite)

In one week last August, federal courts found that Texas’ voter ID law and redistricting maps were discriminatory and violated the Voting Rights Act. The Supreme Court’s recent decision invalidating Section 4 of the VRA, which previously covered Texas, tragically wiped away those rulings. Now the Department of Justice is once again stepping in to fight for voting rights in the Lone Star State.

The DOJ announced today that it is objecting to Texas’ voter ID law under Section 2 of the VRA and will also seek to join a similar lawsuit against the state’s redistricting maps. Last month, DOJ asked a court in Texas to force the state to approve its voting changes with the federal government for a period of time under another provision of the VRA, Section 3, based on a finding of intentional discrimination in the restricting case. The federal courts found last year that Texas’ new maps for Congress and the state house were “enacted with discriminatory purpose.”

A federal court blocked Texas’ voter ID law last year for very good reason. As I wrote last August, here are the facts of the case:

The state admitted that between 603,892 to 795,955 registered in voters in Texas lacked government-issued photo ID, with Hispanic voters between 46.5 percent to 120 percent more likely than whites to not have the new voter ID; to obtain one of the five government-issued IDs now needed to vote, voters must first pay for underlying documents to confirm their identity, the cheapest option being a birth certificate for $22 (otherwise known as a “poll tax”); Texas has DMV offices in only eighty-one of 254 counties in the state, with some voters needing to travel up to 250 miles to obtain a new voter ID. Counties with a significant Hispanic population are less likely to have a DMV office, while Hispanic residents in such counties are twice as likely as whites to not have the new voter ID (Hispanics in Texas are also twice as likely as whites to not have a car).

The court objected to the law specifically because “(1) a substantial subgroup of Texas voters, many of whom are African American or Hispanic, lack photo ID; (2) the burdens associated with obtaining ID will weigh most heavily on the poor; and (3) racial minorities in Texas are disproportionately likely to live in poverty.” Along with North Carolina, Texas has the harshest and most absurd voter ID law in the nation. Case in point: you can use a gun permit to vote but not a student ID. The state is also doing nothing to encourage people to get the supposedly “free” ID; a month after the Supreme Court’s ruling, only six people in Texas had obtained one, even though 600,000 to 800,000 registered voters lack the government-issued ID.

In its new court filing, DOJ contends that the voter ID law “will disproportionately impact Hispanic and African-American voters in the State of Texas, resulting in their being disenfranchised at a greater rate than Anglo voters.” The department says the law, known as SB 14, was “motivated by discriminatory intent” and “will have a discriminatory result.”

From the brief:

While the stated purpose of SB 14 was to ensure the integrity of elections, voter ID proponents cited virtually no evidence during or after enactment of SB 14 that in-person voter impersonation—the only form of election fraud addressed by the identification requirements of SB 14—was a serious problem or that the State’s then-existing identification procedures had failed to prevent in-person voter impersonation.

The State knew or should have known that Hispanic and African-American Texans disproportionately lack the forms of photo ID required by SB 14, as compared to their Anglo counterparts.

Nevertheless, supporters of voter ID in the Texas legislature made little to no effort to analyze the potential effect of photo ID requirements on minority voters and rejected amendments requiring investigation of the effect of SB 14.

The long history of voting discrimination in Texas makes the new law all-the-more worrisome. DOJ writes: “The State of Texas’s history of official racial discrimination against its African-American and Hispanic citizens is longstanding and well-documented. Federal intervention has been necessary to eliminate numerous devices intentionally used to restrict minority voting in Texas.” Texas has lost more Section 5 enforcement suits than any other state.

It will be much harder for the Department of Justice to block Texas’ voting changes under Section 2 of the VRA than it would have been under Section 5, but they’re smart to try. (See my piece on why Section 2 is no replacement for Section 5.) “We will not allow the Supreme Court’s recent decision to be interpreted as open season for states to pursue measures that suppress voting rights,” Attorney General Eric Holder said today. “This represents the Department’s latest action to protect voting rights, but it will not be our last.”

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Since the Court’s decision, seven Southern states have rushed to pass or implement onerous new voting restrictions. North Carolina recently adopted the country’s worst voter suppression law (which voting rights groups are also challenging under Section 2), with local election boards escalating attacks on student voting hours after its passage by shutting down polling places at college campuses and preventing students from running for office. Since Holder has vowed more action to protect voting rights, there’s a very good chance that the Tarheel State will be next on his list.

A supporter of the North Carolina NAACP holds stickers for those gathered in the House chamber of the North Carolina General Assembly, Wednesday, April 24, 2013. (AP Photo/Gerry Broome)

Three lawsuits have been filed challenging North Carolina’s new voter suppression law, which I called the worst in the nation and Rick Hasen says is the most restrictive since the passage of the Voting Rights Act in 1965. Now comes the question: Will the challenges be successful? Here are three factors that will decide the outcome in North Carolina and the future of the VRA and voting rights more broadly.

1. Can Section 2 replace Section 5 of the VRA?

Conservatives opposed to Section 5 of the Voting Rights Act strenuously made the argument before and after the Supreme Court’s decision in Shelby County v. Holder that Section 2 was an adequate replacement for Section 5, which forced states with the worst history of voting discrimination to approve their voting changes with the federal government. “Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in Section 2,” Chief Justice Roberts wrote for the majority. Testifying before the House, Hans van Spakovsky of the Heritage Foundation called Section 2 “the heart of the VRA” and said “there’s no reason for Congress to take any action” to resurrect Section 5 with a new coverage map.

This is a clever and disingenuous marketing job. In truth, Section 2 has been used mostly to challenge at-large election schemes and to protect majority-minority districts during redistricting, and has been narrowed in recent years by the Supreme Court, most recently in Bartlett v. Strickland in 2009. The Department of Justice hasn’t filed a Section 2 lawsuit since 2009 and no major voting restrictions were blocked under Section 2 during the last election. It’s difficult to challenge voting changes before they go into effect under Section 2 and the cases often take years and millions of dollars to defend. “This is one of the fixes we need from Congress,” says Spencer Overton, a professor at George Washington University Law School. “We need some better, clearer standards for Section 2. The law is not well-developed.” Moreover, the more cases that are filed under Section 2, the more likely it is that anti-VRA conservatives will challenge its constitutionality.

Under Section 5, the burden would have been on North Carolina to prove that its voting changes were not discriminatory. Given the overwhelming facts of disparate racial impact in the law, DOJ or the courts would have almost certainly blocked its implementation. The strong evidence of racial discrimination in this case shows the urgent need for Congress to resurrect Section 5.

The outcome under Section 2 “will depend on a lot of discretionary factors instead of a straightforward law, which is why Congress needs to update the VRA,” says Overton. “It’s uncharted territory, so no one really knows what will happen,” says Dale Ho, director of the ACLU’s voting rights project. The federal lawsuits have been assigned to Judge Thomas Schroeder of the Middle District of North Carolina, a George W. Bush appointee regarded as an establishment Republican.

2. Did North Carolina Republicans intentionally discriminate against minority voters?

Lawsuits brought by the North Carolina NAACP and the ACLU ask that North Carolina be covered under Section 3 of the VRA, so that they must seek federal approval of their voting changes for a period of time, based on a “preponderance of evidence” of intentional discrimination. DOJ recently asked a court to do this with Texas. “The General Assembly has discriminated against African Americans and other voters of color in violation of the Fourteenth Amendment, and thus coverage under Section 3(c) is mandated under the Voting Rights Act,” the ACLU plaintiffs in North Carolina write.

The lawsuits argue that clear evidence of the law’s discriminatory burden on African-Americans—who were disproportionately more likely to lack ID and to use early voting and same-day voter registration, for example—was presented during the legislative debate and that Republican sponsors of the bill did nothing to alter the legislation. “After Shelby County v. Holder, the courts are going to have to take these intent claims seriously,” says Penda Hair, co-director of the Advancement Project, which filed suit on behalf of the North Carolina NAACP.

But North Carolina could argue, like Texas, that its law was simply aimed at disenfranchising Democrats, not minorities, and thus is not intentionally discriminatory. Proving intentional discrimination in court is very difficult. One change Congress could easily make is for Section 3 to cover voting changes that have a discriminatory impact, not intent. Under that standard, North Carolina would almost certainly have to clear its voting changes with the feds for a period of time.

3. Will voter suppression efforts produce an electoral backlash among minority voters?

It’s almost considered a truism today that laws meant to disenfranchise minority voters will motivate more minority voters to cast a ballot in order to defend their most sacred right, since that’s what happened in 2012. But the backlash against voter suppression in the last election was the result of a number of unique factors: an extremely well-organized and well-funded Obama campaign, a poorly run Romney campaign that did almost no outreach to minority voters and the fact that many of the new voting restrictions were blocked or repealed in key battleground states like Ohio, Wisconsin and Pennsylvania.

We shouldn’t assume that such a backlash will become the new normal, especially as more onerous laws are put on the books in the wake of the Supreme Court’s decision. “The 2012 election was an anomaly, because of the candidate and campaign at the top of the ticket,” says Overton. “In primaries, off-year elections, midterms, the resources aren’t there to mobilize people to the polls.” And even if the impact of a new voting restriction is ultimately tempered or overcome, that doesn’t make attempts to restrict the right to vote any less immoral. “I hope there is a backlash,” says Hair. “I hope everyone is so angry in North Carolina about efforts to take away their right to vote that they redouble their efforts. But you shouldn’t have to redouble your efforts in order to vote.”

That said, North Carolina is one of the states where you could potentially see a higher turnout as a result of the legislature’s draconian overreach. First off, the Republican legislature is deeply unpopular, with a 20 percent approval rating, and so is the new voting bill, with 39 percent approving and 50 percent disapproving. Seventy percent of moderates and 72 percent of African-Americans dislike the legislation. Second, the well-organized Moral Monday coalition has been mobilizing people against the legislature’s actions for months and is strongly positioned to get a lot of people to the polls. Third, the litigation against the law will keep this story in the news and make more people aware of its onerous details. Fourth, there is a competitive Senate race in North Carolina that could decide the balance of power nationally, with Democrat Kay Hagan likely facing North Carolina Speaker of the House Thom Tillis, who was named “legislator of the year” by the American Legislative Exchange Council in 2011 and is closely tied to all of the unpopular legislation passed by the General Assembly.

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Republicans have done everything possible, through aggressive racial gerrymandering and onerous new voting restrictions, to protect their majorities in 2014 and beyond. In so doing, they’ve alienated a large segment of the electorate. The next election will be a good test case of the extent to which power-hungry politicians can successfully manipulate the democratic process in order to thwart the will of the people.

CORRECTION: I initially wrote that Section 2 has been used mostly for redistricting, which isn't true. Of the 1,265 successful Section 2 challenges, according to voting rights historian Morgan Kousser, 70 percent challenged at-large elections, which have been used since the passage of the VRA to thwart growing minority voting power, and 12 percent related to redistricting. "What should be emphasized," says Kousser, "is a point that you and I and many others have made before: Section 5 has primarily stopped local changes, and Section 2 has stopped changes that were already in place or in areas not covered by Section 5.  While it may be that big statewide redistricting and voter id changes will attract Section 2 lawsuits, election laws in small towns and rural areas, and even in substantial cities, will either go unnoticed or be ineffectively attacked or the expense will drain voting rights lawyers." It's also worth noting that 85 percent of DOJ objections under Section 5 were to local election changes that are unlikely to be challenged under Section 2.

“Today is a triumph for freedom as huge as any victory that has ever been won on any battlefield,” President Lyndon Johnson said on August 6, 1965, when he signed the Voting Rights Act into law.

The VRA quickly became known as the most important piece of modern civil rights legislation and one of the most consequential laws ever passed by Congress. It led to the abolition of literacy tests and poll taxes; made possible the registration of millions of minority voters; forced states with a history of voting discrimination to clear electoral changes with the federal government to prevent future discrimination; and laid the foundation for generations of minority elected officials.

Inside the US Capitol Rotunda, LBJ announced the signing of the bill flanked by a bust of President Lincoln, who exactly 104 years earlier had signed the Confiscation Act freeing Confederate slaves. Among the many civil rights leaders present on that historic day forty-eight years ago was John Lewis, the 25-year-old chairman of the Student Nonviolent Coordinating Committee, who had nearly died four months earlier marching for the right to vote in Selma, Alabama. He was the only veteran of the “Bloody Sunday” march to attend the signing ceremony, as historian Gary May notes in his new history of the VRA, “Bending Toward Justice.” Lewis remembered that day in August 1965 as “a high point in modern American, probably the nation’s finest hour in terms of civil rights.”

Twenty-one years later, Lewis won election to Congress from Georgia’s 5th House district, representing the hometown of his idol Martin Luther King Jr. He has the pen LBJ gave him after signing the VRA framed in his Atlanta home and a bust of the thirty-sixth president in his Washington office. Without the VRA, there would be no Congressman Lewis or Senator Rubio or President Obama. “When Lyndon Johnson signed the Voting Rights Act,” Lewis said on a trip to Alabama in March, “he helped free and liberate all of us.”

Consider how the VRA transformed American democracy:

• In 1965, only 31 percent of eligible black voters were registered to vote the in the seven Southern states originally covered by the VRA, compared to 72 percent of white voters. The number of black registered voters was as low as 6.7 percent in Mississippi. In Selma, only 393 of 15,000 eligible black voters were registered when LBJ introduced the VRA in March 1965.

Today, 73 percent of black voters are registered to vote, according to the US Census and black voter turnout exceeded white turnout in 2012 for the first time in recorded history.

• In 1965, there were fewer than 500 black elected officials nationwide.

Today, there are more than 10,500.

• In 1965, there were only five black members of Congress.

Today, there are forty-four. The 113th Congress is the most diverse in history, with ninety-seven minority elected representatives.

• Since 1965, the Justice Department blocked at least 1,150 discriminatory voting changes from going into effect under Section 5 of the VRA.

Yet the Supreme Court’s decision in late June invalidating Section 4 of the VRA threatens to roll back much of the progress made over the past forty-eight years. Since the ruling, six Southern states previously covered under Section 4 have passed or implemented new voting restrictions, with North Carolina recently passing the country’s worst voter suppression law. The latest assault on the franchise comes on the heels of a presidential election in which voter suppression attempts played a starring role, with 180 bills introduced in forty-one states to restrict access to the ballot in 2011–12, which NAACP President Ben Jealous called “the greatest attacks on voting rights since segregation.” The broad scope of contemporary voting discrimination is why John Lewis testified before Congress last month that “the Voting Rights Act is needed now like never before.”

The spread of voter suppression efforts to states like Pennsylvania, where over 500,000 registered voters could be disenfranchised by a voter ID law before the courts, is a strong argument for expanding, not eliminating, the key provisions of the VRA. Sections 2 and 3 of the VRA, as currently written, are no substitute for Sections 4 and 5. Under Section 2, discriminatory voting changes can only be challenged after lengthy and expensive litigation, with the burden of proof on those facing discrimination. Under Section 3, a court has to find that a state (like Texas) was guilty of intentional discrimination, a very high bar to clear, in order to force it to approve its voting changes with the federal government for a period of time. Under Section 5, however, the states with the worst history of discrimination had to prove that their voting changes were not discriminatory before they became law. As Chief Justice Earl Warren wrote in 1966, the genius of the law was to “shift the advantage of time and inertia from the perpetrators of the evil to its victims.”

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The evil of voting discrimination remains all-too-common today, which is why Congress urgently needs to strengthen the VRA. Representative James Sensenbrenner (R-WI), the former chair of the House Judiciary Committee who presided over the overwhelming congressional reauthorization of the VRA in 2006, recently told CQ Roll Call, “There are a lot of Republicans who are [on board], but they don’t want to be publicly named.” If there is indeed a silent majority of Republicans who still support the VRA, let’s hope they speak up soon. Otherwise, on the fiftieth anniversary of the VRA in 2015, we may be mourning its demise instead of celebrating its transformational impact.

Take Action: Tell Congress to Honor John Lewis with a New Voting Rights Act