On American politics and policy.
In 1963, only 156 of 15,000 eligible black voters in Selma, Alabama, were registered to vote. The federal government filed four lawsuits against the county registrars between 1963 and 1965, but the number of black registered voters only increased from 156 to 383 during that time. The law couldn’t keep up with the pace and intensity of voter suppression.
The Voting Rights Act ended the blight of voting discrimination in places like Selma by eliminating the literacy tests and poll taxes that prevented so many people from voting. The Selma of yesteryear is reminiscent of the current situation in Texas, where a voter ID law blocked by the federal courts as a discriminatory poll tax on two different occasions—under two different sections of the VRA—remains on the books.
The law was first blocked in 2012 under Section 5 of the VRA. “A law that forces poorer citizens to choose between their wages and their franchise unquestionably denies or abridges their right to vote,” wrote Judge David Tatel. “The same is true when a law imposes an implicit fee for the privilege of casting a ballot.”
Then the Supreme Court gutted the VRA—ignoring the striking evidence of contemporary voting discrimination in places like Texas—which allowed the voter ID law to immediately go into effect. “Eric Holder can no longer deny #VoterID in #Texas after today’s #SCOTUS decision,” Texas Attorney General Greg Abbott tweeted minutes after the Shelby County v. Holder decision. States like Texas, with the worst history of voting abuses, no longer had to approve their voting changes with the federal government. Texas had lost more Section 5 lawsuits than any other state.
The law was challenged again by the Justice Department and civil rights groups. After a lengthy trial, it was struck down, again, on October 9, in a searing opinion by Judge Nelva Gonzales Ramos, who called the law “an unconstitutional poll tax.”
Ramos found that 600,000 registered voters in Texas—4.5 percent of the electorate—lacked a government-issued ID, but the state had issued only 279 new voter IDs by the start of the trial. African-Americans were three times as likely as whites to not have a voter ID and Hispanics twice as likely. The law was passed by the Texas legislature, “because of and not merely in spite of the voter ID law’s detrimental effects on the African-American and Hispanic electorate,” Ramos wrote.
But five days later, the US Court of Appeals for the Fifth Circuit —one of the most conservative courts in the country—overruled Ramos, arguing that striking the voter ID law “substantially disturbs the election process of the State of Texas just nine days before early voting begins.” The appeals court curiously believed that blocking the voter ID before the election would do more harm to voters than preserving a law that could disenfranchise 600,000 voters in the state.
The Supreme Court upheld the Appeals Court decision on October 18. It was the first time since 1982 that the Court approved a voting law deemed intentionally discriminatory by a trial court. Justice Ginsburg dissented, joined by Justices Sotomayor and Kagan. “The greatest threat to public confidence in elections in this case is the prospect of enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters,” Ginsburg wrote.
Four major voting rights cases have come before the Supreme Court in the past month—from Ohio, North Carolina, Wisconsin and Texas—and in three instances the court has ruled to restrict voting rights.
The Roberts Court has set a trap for voters. First it paralyzed Section 5 of the VRA, taking away the federal government’s most potent weapon for stopping voting discrimination. Instead, it urged the Justice Department and civil rights groups to challenge discriminatory voting changes under Section 2 of the VRA, even though Justice Kennedy admitted in 2009 that “Section 2 cases are very expensive. They are very long. They are very inefficient.” Then, when a slew of lawsuits are filed under Section 2, the Supreme Court largely sides with those restricting voting rights. It seems like the Court’s conservative majority is planning to eviscerate every important part of the VRA.
The recent decisions show that Section 2 of the VRA is no replacement for Section 5. Earlier this year, members of Congress introduced a legislative fix for the VRA to resurrect Section 5 in states with five voting rights violations in the past fifteen years. One of the states covered by the new law would be Texas.
It’s been a bad week for voter ID laws.
On Wednesday, the Government Accountability Office released a comprehensive study showing that strict voter ID laws in Kansas and Tennessee decreased voter turnout by two to three points from 2008 to 2012 compared to similar states without voter ID laws, leading to 122,000 fewer votes.
Last night, a federal district court struck down Texas’s voter ID law, the strictest in the country, calling it “an unconstitutional poll tax.”
An hour later, the Supreme Court released a brief order blocking Wisconsin’s voter ID law for November. The 6-3 ruling didn’t explain why, but hinted it was because the massive new voting restriction was reinstated by the US Court of Appeals for the Seventh Circuit weeks before the election. Nearly 10 percent of registered voters in Wisconsin don’t have a government-issued ID, and the new requirement was causing chaos on the ground. (Wisconsin’s elimination of early voting on nights and weekends remains in effect.)
My colleague John Nichols wrote about the Wisconsin decision, so I’ll focus on the Texas case.
The 147-page opinion by Judge Nelva Gonzales Ramos of the Southern District of Texas, an Obama appointee, is the most extensive rebuke of strict voter ID laws that I’ve read to date. It debunks the myths that everyone has the limited forms of government-issued photo ID required to vote, that it’s easy to get one, that there is an epidemic of voter fraud necessitating such laws, and that voter ID laws are always constitutional.
Judge Ramos found that 608,470 registered voters in Texas, representing 4.5 percent of all registered voters, lack the necessary voter ID, with African-Americans three times as likely as whites to not have a voter ID and Hispanics twice as likely. The state had issued only 279 voter IDs by the start of the trial in September.
She ruled that law, known as SB 14, violated Section 2 of the Voting Rights Act.
“It is clear from the evidence,” Ramos wrote, “that SB 14 disproportionately impacts African-American and Hispanic registered voters relative to Anglos in Texas…To call SB 14’s disproportionate impact on minorities statistically significant would be an understatement.”
There’s no such thing as a “free” voter ID in Texas. To get a qualified voter ID, you need underlying documents that cost money—the most common option being a birth certificate, which ranges from $22 to $47. That’s why Ramos called it a poll tax. Multiple witnesses in the case tried long and hard to get this documentation, and still could not. She pointed to the story of Margarito Lara, who testified at the trial.
Mr. Lara, a 77-year-old Hispanic retiree from Sebastian, Texas, has attempted to locate his birth certificate for more than twenty years. He was born in what he described as a “farm ranch” in Cameron County, Texas. With the help of his daughter, he visited three offices in two counties but was unsuccessful in locating his birth certificate. Mr. Lara later paid a $22.00 search fee to DSHS [Texas Department of State Health Services] to confirm what he already suspected—his birth was never registered. Thus, Mr. Lara must now apply for a delayed birth certificate (using a 14-page packet of instructions and forms) at a cost of $25.00. Additionally, he will have to pay $22.00 for a certified copy of the birth certificate. He testified that he has twice attempted to apply for the delayed birth certificate to no avail.
Two years ago, Eric Holder was widely ridiculed for calling Texas’s voter ID law a poll tax. Now a federal court has agreed.
“We are extremely heartened by the court’s decision, which affirms our position that the Texas voter identification law unfairly and unnecessarily restricts access to the franchise,” the outgoing attorney general said in a statement. “Even after the Voting Rights Act was seriously eroded last year, we vowed to continue enforcing the remaining portions of that statute as aggressively as possible. This ruling is an important vindication of those efforts.”
Even if getting this documentation wasn’t a bureaucratic nightmare, seventy-eight of 254 counties in Texas don’t have a DMV office. “For some communities along the Mexican border, the nearest permanent DPS office is between 100 and 125 miles away,” Ramos wrote. Texas has done virtually nothing to ensure that the hundreds of thousands of voters without ID can easily get one.
Nine plaintiffs in the case lacked a qualified voter ID—twice as many disenfranchised voters as there were cases of voter fraud presented by the state. Texas has successfully prosecuted only four cases of voter impersonation in the past twelve years.
Ramos found that the law was passed not to combat voter impersonation in Texas—which is basically non-existent—but to make it harder for blacks and Hispanics to vote.
The record as a whole (including the relative scarcity of incidences of in-person voter impersonation fraud, the fact that SB 14 addresses no other type of voter fraud, the anti-immigration and anti-Hispanic sentiment permeating the 2011 legislative session, and the legislators’ knowledge that SB 14 would clearly impact minorities disproportionately and likely disenfranchise them) shows that SB 14 was racially motivated.
The law violates Section 2 of the VRA, Ramos said, because it has a discriminatory effect and, most notably, a discriminatory purpose.
This Court concludes that the evidence in the record demonstrates that proponents of SB 14 within the 82nd Texas Legislature were motivated, at the very least in part, because of and not merely in spite of the voter ID law’s detrimental effects on the African-American and Hispanic electorate.
That finding is incredibly significant, meaning that Texas can be “bailed-in” under Section 3 of the VRA and could once again have to approve its voting changes with the federal government under Section 5 of the VRA, which the Supreme Court gutted in June 2013. Texas would be the first state subject to the potent yet little-used bail-in since the Shelby County v. Holder decision. The Court will rule on this request from the Justice Department and civil rights groups like the NAACP Legal Defense Fund in the coming weeks.
The law was previously blocked under Section 5 by a federal court in Washington in 2012—gaining the unique distinction of being struck down twice, under different sections of the VRA. Maybe that’s a sign that Texas should give this whole voter suppression thing a rest. (Texas vowed to appeal immediately. One Republican lawmaker, the former chair of the House elections committee, testified at the trial that Republicans in the legislature would have been “lynched” by the voters if they didn’t pass voter ID in 2011.)
Still, these are only tentative victories. The US Court of Appeals for the Fifth Circuit—the most conservative court in the country—could easily overturn Ramos’s decision. And the Supreme Court could uphold Wisconsin’s voter law if/when it rules on the merits—even though the voter ID laws in Texas and Wisconsin are much more burdensome, in design and practicality, than the Indiana voter ID law upheld by the Court in 2008.
On Wednesday evening, the Supreme Court overruled a Fourth Circuit Court of Appeals decision reinstating same-day registration and out-of-precinct voting in North Carolina for the midterms. Because this was an order to stay the injunction, not a decision on the full merits of the law, the Court’s majority did not explain its reasoning. Justices Ginsburg and Sotomayor dissented.
It’s the second time the Supreme Court has ruled against voting rights in the past ten days, after the court also overruled an appeals court decision reinstating a week of early voting and same-day registration in Ohio.
The roots of the North Carolina case go back to June 25, 2013, when the Court struck down Section 4 of the Voting Rights Act in Shelby County v. Holder, which meant that states with the worst history of voting discrimination—like North Carolina—no longer had to approve their voting changes with the federal government.
A month after that ruling, North Carolina passed the country’s toughest voting restrictions, repealing or curtailing every voting reform in the state that encouraged people to vote. The bill became far more extreme because of the Shelby decision and the federal government no longer had the power to prevent it from becoming law. As Justice Ginsburg wrote in her dissent, “These measures likely would not have survived federal preclearance.”
Key parts of the voting law were challenged in court this summer. A district court denied a preliminary injunction for the Justice Department and civil rights groups like the North Carolina NAACP and the ACLU, but the Fourth Circuit reinstated same-day registration and out-of-precinct voting on October 1.
The Supreme Court’s decision could have a very negative impact on the election. Nearly 100,000 voters used same-day registration during the early voting period in 2012, including twice as many blacks as whites. Roughly 7,500 voters cast their ballots in the right county but wrong precinct in 2012.
States with same-day registration, like North Carolina, have the highest voter turnout in the country. “Average voter turnout was over 10 percentage points higher in SDR states than in other states,” Demos reported for 2012. North Carolinians now have only two more days to register to vote before the October 10 deadline.
Hundreds of voters were prevented from casting ballots in the May primary when the state eliminated these reforms—a disturbing preview of what’s to come. North Carolina has one of the closest Senate races in the country between Kay Hagan and Thom Tillis and is expected to have a large turnout this November. The Supreme Court’s decision could very well decide who controls the Senate.
There’s a cruel irony behind this ruling. The most popular conservative talking point during the Shelby County debate was that Section 2 of the VRA could replace Section 5.
“It seems to me that the Government can very easily bring a Section 2 suit,” Justice Kennedy said during oral arguments.
But challenging voting discrimination under Section 2 has been far from easy of late. In three states where new voting restrictions have been struck down under Section 2 in the past year—North Carolina, Ohio and Wisconsin—the decisions have been reversed by the appeals courts or Supreme Court.
North Carolina’s new voting restrictions are now in effect until a full trial in July 2015. The Tarheel State is the case study for how devastating the Supreme Court’s gutting of the VRA has been.
Last year, North Carolina passed the most sweeping voting restrictions since the passage of the Voting Rights Act in 1965.
Civil rights groups like the North Carolina NAACP and ACLU asked the courts for an injunction against three major parts of the law before the midterms—a reduction in early voting by a week, the elimination of same-day registration during the early voting period and a prohibition on counting ballots accidentally cast in the wrong precinct. In early August, District Court Judge Thomas Schroeder denied the injunction, saying the plaintiffs had not proven “irreparable harm.”
Two of three judges on the Fourth Circuit Court of Appeals overruled parts of Schroeder’s ruling today, reinstating same-day registration and the counting of out-of-precinct ballots for 2014.
In not-so-good news for voting rights, the appeals court also upheld: “(i) the reduction of early-voting days; (ii) the expansion of allowable voter challengers; (iii) the elimination of the discretion of county boards of elections to keep the polls open an additional hour on Election Day in ‘extraordinary circumstances’; (iv) the elimination of pre-registration of sixteen- and seventeen-year-olds who will not be eighteen years old by the next general election; and (v) the soft roll-out of voter identification requirements to go into effect in 2016.”
“With respect to these provisions, we conclude that, although Plaintiffs may ultimately succeed at trial, they have not met their burden of satisfying all elements necessary for a preliminary injunction,” wrote Judges James Wynn and Henry Floyd, two Obama appointees.
The restoration of same-day registration and out-of-precinct voting is an important victory for voters in North Carolina. Nearly 100,000 North Carolinians used same-day registration in 2012, including twice as many blacks as whites.
Roughly 7,500 voters also cast their ballots in the wrong precinct but right county in 2012. Judge Wynn noted during oral arguments that he lived next door to a voting precinct, but was registered to vote at one a few miles away, which was highly confusing for voters.
“Why doesn’t North Carolina want people to vote?” he asked the state.
Over 450 voters were disenfranchised by the elimination of these reforms in the May primary, including an army veteran returning from Afghanistan.
“Plaintiffs presented undisputed evidence showing that same-day registration and out-of-precinct voting were enacted to increase voter participation, that African American voters disproportionately used those electoral mechanisms, and that House Bill 589 restricted those mechanisms and thus disproportionately impacts African American voters,” wrote Judge Wynn.
This is also an important victory for voting rights nationally after a series of bad decisions recently.
On Monday, the Supreme Court ruled against early voting in Ohio just sixteen hours before it was set to begin.
On September 13, a panel of three Republican judges on the Seventh Circuit immediately reinstated Wisconsin’s voter ID law, which had been blocked for over two years, weeks before the election, causing electoral chaos in the state.
In the North Carolina case, Judge Diana Motz dissented because she said the state was not prepared to implement any last-minute voting changes.
“The public interest is not served changing the rules to an election this close to an election,” argued Tom Farr, a lawyer for North Carolina. That’s the exact opposite of what Republican officials who supported voter ID argued in Wisconsin.
But there’s a big difference between the cases in Wisconsin and North Carolina—the appeals court in Wisconsin implemented a sweeping new election restriction weeks before the election that voters and election officials were unfamiliar with. The appeals court in North Carolina simply restored parts of the status quo that existed before the May primary, which had been the norm for voters.
“We’re asking that voters be able to vote the way they did in 2012 and 2010,” argued Penda Hair of the Advancement Project.
The victory, however, could be short-lived if North Carolina appeals to the Supreme Court. Either way, there will be a full trial on the totality of the new voting restrictions in July 2015.
Read Next: Eric Holder’s voting rights legacy
When Eric Holder took over the Department of Justice, the Civil Rights Division, known as the crown jewel of the agency, was in shambles. Conservative political appointees in the Bush administration had forced out well-respected section chiefs. Longtime career lawyers left in droves, replaced by partisan hacks. Civil rights enforcement was virtually non-existent.
Holder made restoring the credibility of the Civil Rights Division a leading cause. “In the last eight years, vital federal laws designed to protect rights in the workplace, the housing market, and the voting booth have languished,” he said at his confirmation hearing. “Improper political hiring has undermined this important mission. That must change. And I intend to make this a priority as attorney general.”
Enforcing the Voting Rights Act became a key priority for Holder’s Justice Department. In 2012, it successfully challenged Texas’s voter ID law, South Carolina’s voter ID law, and Florida’s cutbacks to early voting under the VRA.
When the Supreme Court gutted the VRA last June, Holder vowed an aggressive response. “We will not hesitate to take swift enforcement action—using every legal tool that remains available to us—against any jurisdiction that seeks to take advantage of the Supreme Court’s ruling by hindering eligible citizens’ full and free exercise of the franchise,” Holder said at a press conference afterward.
Since the Shelby County decision, the Justice Department has filed suit against restrictive voting laws in Texas and North Carolina and joined lawsuits challenging new voting restrictions in Ohio and Wisconsin.
This cause was personal to Holder. His sister-in-law, Vivian Malone Jones, was one of two African-American students to integrate the University of Alabama in 1963. “I so wish Vivian had lived to see this moment,” Holder said in Selma after Obama’s election.
As a sign of that commitment to civil rights and voting rights, Holder called Representative John Lewis and Ethel Kennedy this morning to personally tell them he was stepping down. Since there’s no sign that the current attack on voting rights is abating, hopefully it is a commitment that his successor will share.
Holder generated a lot of controversy in many areas—some of it justified, much of it not. His defense of voting rights deserves to be remembered as one of the most consequential aspects of his tenure as the nation’s top law enforcement official.
Late Friday afternoon, a panel of Democrat-appointed judges on the Sixth Circuit upheld a preliminary injunction from a Democrat-appointed district court judge striking down Ohio’s cuts to early voting. Two hours earlier, however, a trio of Republican-appointed judges on the Seventh Circuit overturned an injunction from a Democratic judge blocking Wisconsin’s voter ID law.
This is why elections matter. And the courts are increasingly becoming the arbiters of who does and does not get to participate in them.
In May, Wisconsin district court Judge Lynn Adelman issued a strong decision invalidating the state’s voter ID law. Three hundred thousand registered voters in Wisconsin did not have a government-issued ID, Adelman found, and those without ID were disproportionately black and Hispanic. Wisconsin presented no evidence of voter fraud to justify the burdens of the new law.
The court axed Adelman’s ruling just hours after hearing the appeal, in a swift and stunning decision that allows Wisconsin to immediately implement its controversial law less than two months before the midterms.
The court’s one-page opinion said:
The district court held the state law invalid, and enjoined its implementation, even though it is materially identical to Indiana’s photo ID statute, which the Supreme Court held valid in Crawford v. Marion County Election Board. It did this based on findings that it thought showed that Wisconsin did not need this law to promote an important governmental interest, and that persons of lower income (disproportionately minorities) are less likely to have driver’s licenses, other acceptable photo ID, or the birth certificates needed to obtain them, which led the court to hold that the statute violates Section 2 of the Voting Rights Act
After the district court’s decision, the Supreme Court of Wisconsin revised the procedures to make it easier for persons who have difficulty affording any fees to obtain the birth certificates or other documentation needed under the law, or to have the need for documentation waived. This reduces the likelihood of irreparable injury, and it also changes the balance of equities and thus the propriety of federal injunctive relief. The panel has concluded that the state’s probability of success on the merits of this appeal is sufficiently great that the state should be allowed to implement its law, pending further order of this court.
The appeals court ruling is suspect on a number of fronts.
1. The Crawford case was not filed under the Voting Rights Act and did not center on racial discrimination in voting.
Section 2 of the VRA prohibits a voting system where the “totality of circumstances” shows that minority voters “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
Adelman found that was the case in Wisconsin. “The evidence adduced at trial demonstrates that this unique burden disproportionately impacts Black and Latino voters,” he wrote. Data from the 2012 election “showed that African American voters in Wisconsin were 1.7 times as likely as white voters to lack a matching driver’s license or state ID and that Latino voters in Wisconsin were 2.6 times as likely as white voters to lack these forms of identification.” According to a University of Wisconsin study, 78 percent of black men ages 18–24 in Wisconsin lack a government-issued ID.
In Crawford, the Supreme Court said that Indiana had a compelling interest in preventing voter fraud, even though the state presented no evidence of voter fraud to justify the law. Six years later, however, it’s clear there’s no practically no evidence of voter impersonation in America, whereas the burdens of voter ID laws are much better understood.
“The evidence at trial established that virtually no voter impersonation occurs in Wisconsin,” Adelman wrote. “The defendants could not point to a single instance of known voter impersonation occurring in Wisconsin at any time in the recent past…. It is absolutely clear that Act 23 will prevent more legitimate votes from being cast than fraudulent votes.”
The absence of a compelling state interest and the presence of a discriminatory impact on blacks and Hispanics—which was not the case in Indiana—led Adelman to block the law.
2. Justice John Paul Stevens, who wrote the Crawford decision, is now a critic of voter ID laws.
“My opinion should not be taken as authority that voter-ID laws are always OK,” he told The Wall Street Journal last year. “The decision in the case is state-specific and record-specific.”
Stevens now says he agrees with Judge Souter’s dissent in the case. “As a matter of actual history, he’s dead right. The impact of the statute is much more serious” on poor, minority, disabled and elderly voters than the evidence in the 2008 case indicated, Stevens said.
3. Approving a law of this magnitude less than two months before a major election is certain to cause electoral chaos. Wisconsin’s voter ID law has been blocked since March 2012—in four different lawsuits in state and federal court.
Nine percent of Wisconsin’s electorate lacks a government-issued ID, compared to Indiana, where 99 percent of registered voters had ID.
Even if these hundreds of thousands of voters possess the underlying documentation to obtain a voter ID—like a birth certificate (seven witnesses at the trial didn’t have access to theirs)—they’d still have trouble getting one.
According to an amicus brief filed by One Wisconsin Now, 257,000 voting-age Wisconsinites don’t have a car in their household. Moreover, only thirty-three of Wisconsin’s ninety-two DMVs are open full-time during business hours. Wisconsin is very different from Indiana in that respect, notes the brief:
41 [DMVs] are open just two days each week, seven are open just a few hours for one day each month, and three are open just one day every quarter.… Only one DMV service center in the entire state of Wisconsin is open on a Saturday. No other DMV in the entire state operates in the evenings or on weekends.
Nearly all of Indiana’s 140 BMVs are open five days a week, Wisconsin has only 33 full-time sites; Indiana has 124 that are open on the weekends, Wisconsin has one.
According to the DMV website, the 92 DMV service centers are open for a combined total of approximately 9000 hours per month. If the 330,000 electors [without ID] attempted to obtain their ID during the one-month period preceding the election, the DMV would need to process on average 37 eligible electors each hour, every day of operation for the entire month.
4. Wisconsin Republicans also eliminated early voting hours on nights and weekends in 2014, which further reduces access to the polls. Over 250,000 Wisconsinites voted early in 2012, one in twelve overall voters, favoring Obama 58 to 41 percent over Romney.
Take a look at this chart:
It just so happens that Wisconsin Governor Scott Walker, a major proponent of voter ID laws and cutting early voting, is locked in a tight re-election race against Democrat Mary Burke. Is making it more difficult for people to vote his strategy for victory?
Craig Thomas of Granville County, North Carolina, registered to vote before he deployed to Afghanistan with the US Army. After serving abroad for eighteen months, he went to vote early in the state’s primary on April 30. He returned from Afghanistan to the same house, in the same precinct, but was told at the polls that there was “no record of registration” for him.
In the past, Thomas could’ve re-registered during the early voting period and cast a regular ballot under the state’s same-day registration system. But same-day registration was one of the key electoral reforms eliminated by the North Carolina legislature last year when it passed the nation’s most onerous package of voting restrictions. In 2014, Thomas had to cast a provisional ballot, which was not counted. After fighting abroad, he was disenfranchised at home.
Thomas was one of 454 North Carolina voters who would have had their ballots counted in 2012 but did not have them counted in the 2014 primary because of North Carolina’s elimination of same-day registration and prohibition on counting a provisional ballot cast in the wrong precinct, according to a new review by Democracy NC. (North Carolina also cut early voting by a week and mandated a strict voter ID law for 2016, among other things.)
From the report:
Voters denied a chance to have their voices heard include a veteran returning from Afghanistan whose registration was incorrectly terminated while he was away; a first-time voter who registered at the DMV, but that registration didn’t reach the local board of elections; a precinct judge assigned to a precinct other than her own who couldn’t leave to vote in her home precinct; a disabled senior who was driven to a friend’s polling place on Election Day; a nurse who temporarily registered her car in a nearby county while working at its hospital for nine months; a college student who registered during a voter drive but her application was not recorded; and a new couple in town who mailed in their registration but it did not reach the county board of elections before the registration deadline.
These new restrictions disproportionately impacted black and Democratic voters. “While Black voters make up 22% of all registered voters, they were 39% of those who lost their votes because of the two rule changes,” according to Democracy NC. “Democrats are 42% of the state’s registered voters, but 57% of those disenfranchised by the new rules.”
The problems in the primary are a disturbing preview of what’s to come. “These 454 voters are obviously just the tip of the iceberg of the thousands who faced the same problems when they went to vote in the primary and who simply left the polling place without taking the time to fill out the paperwork and file a provisional ballot,” Democracy NC notes.
Voter turnout will be much higher in the general election than in the primary, so many more voters will be burdened by the new rules. North Carolina has one of the closest Senate races in the country between Democrat Kay Hagan and Republican Thom Tillis, which could very well decide control of the Senate.
Last month, US District Court Judge Thomas Schroeder declined to grant a preliminary injunction against the state’s new voting restrictions because he said that the plaintiffs “have not demonstrated they are likely to suffer irreparable harm.”
Craig Thomas and the hundreds of voters whose ballots were not counted would likely disagree with Schroeder’s definition of irreparable harm.
An expedited appeal to block the new restrictions before the midterms will be heard by the Fourth Circuit Court of Appeals in Charlotte on September 25.
Last year, Ohio’s Republican-controlled legislature cut a week of early voting and eliminated the “Golden Week” when voters can register and vote on the same day during the early voting period. GOP Secretary of State Jon Husted also issued a directive prohibiting early voting on the two days before the election, and on weekends and nights in the preceding weeks—the times when it’s most convenient to vote.
Today a federal court in Ohio issued a preliminary injunction against the early voting cuts, which it said violated the Equal Protection Clause of the Fourteenth Amendment and Section 2 of the Voting Rights Act, ordering Ohio to restore early voting opportunities before the midterms. “African Americans in Ohio are more likely than other groups to utilize [early] voting in general and to rely on evening and Sunday voting hours,” wrote District Court Judge Peter Economus, a Clinton appointee. As a consequence, the early voting cuts “result in fewer voting opportunities for African Americans.”
The lawsuit was brought by the ACLU and the Ohio NAACP. In 2012, 157,000 Ohioans cast ballots during early voting hours eliminated by the Ohio GOP. Overall, 600,000 Ohioans, 10 percent of the electorate, voted early in 2012.
Blacks in Ohio were far more likely than whites to vote early in 2008 and 2012. “In the November 2008 election in [Cleveland’s] Cuyahoga County, African-Americans voted early in person at a rate over twenty times greater than white voters,” according to the Lawyers’ Committee for Civil Rights. In cities like Cincinnati, Columbus and Dayton blacks voted early in numbers far exceeding their percentage of the population.
There’s an important backstory here. Early voting became a critical reform in Ohio after the disastrous 2004 election. Once Democrats and minority groups began using it in large numbers, Republicans repeatedly tried to curb early voting. As I’ve previously reported:
In 2004, Ohio had the longest lines in the country on Election Day, with some voters—particularly in large urban areas—waiting as long as seven hours to vote. A DNC survey estimated that 174,000 Ohioans—3 percent of the state’s electorate—left without voting. George W. Bush won the state by just 118,000 votes.
In response to the long lines, Ohio adopted thirty-five days of early voting in 2008, including on nights and weekends. But following the large Democratic turnout in 2008, Ohio Republicans drastically curtailed early voting in 2012 from thirty-five to eleven days, with no voting on the Sunday before the election, when African-American churches historically rally their congregants to go to the polls. Voting rights activists subsequently gathered enough signatures to block the new voting restrictions and force a referendum on Election Day. In reaction, Ohio Republicans repealed their own bill in the state legislature, but kept a ban on early voting three days before Election Day (when 98,000 Ohioans voted in 2008), adding an exception for active duty members of the military, who tend to lean Republican.
These cuts disproportionately impacted black voters, who made up a majority of early voters in large urban areas like Cleveland’s Cuyahoga County and Dayton’s Montgomery County in 2008. Ohio Republicans brazenly tried to cut early voting hours in Democratic counties while expanding them in Republican ones. GOP leaders admitted the cuts in Democratic counties were motivated by racial politics. “I guess I really actually feel we shouldn’t contort the voting process to accommodate the urban—read African-American—voter-turnout machine,” said Doug Preisse, the GOP chair in Columbus’s Franklin County.
These voter suppression efforts backfired in 2012. The Obama campaign successfully sued to reinstate early voting on the three days before Election Day (although Secretary of State Jon Husted limited the hours) and the overall share of the black electorate increased from 11 percent in 2008 to 15 percent in 2012.
Despite the public and legal backlash, Ohio Republicans pressed ahead with early voting cuts in 2013. Now they’ve lost in court, again. (Some Ohio Republicans are also trying to pass a new voter ID law. Nine hundred thousand Ohioans, including one in four African-Americans, don’t have a government-issued ID).
Judge Economus’s ruling could have broad significance. Ohio is once again a critical swing state in 2014, with competitive races for governor and secretary of state.
More broadly, the courts are split over how to interpret the remaining provisions of the Voting Rights Act in the wake of the Supreme Court’s gutting a key part of the law last June. This is the first time a court has struck down limits on early voting under Section 2 of the VRA. A Bush-appointed judge recently denied a preliminary injunction to block North Carolina’s cuts to early voting and the elimination of same-day registration, a lawsuit similar to the one in Ohio. A Wisconsin judged blocked the state’s voter ID law under Section 2, while a similar trial is currently underway in Texas.
As Rick Hasen points out, we still don’t know if the courts will consistently stop new vote denial efforts like voter ID and cuts to early voting. And the Roberts Court could very well overturn any good precedents in the lower courts.
The Ohio ruling is an important voting rights victory. But it won’t be the last word.
Read Next: Will Texas get away with discriminating against voters?
Imani Clark, Aurica Washington, Crystal Owens and Michelle Bessiake are students at Prairie View A&M and Texas Southern University, two historically black colleges in Texas. They do not have a driver’s license or own a car, and do not possess one of the five forms of government-issued identification required by Texas to vote.
They can no longer vote with their students IDs in Texas, where a handgun permit is a valid voter ID but a student ID is not.
The four students are among the plaintiffs challenging the constitutionality of Texas’s voter ID law in federal court in Corpus Christi this week. The trial before Judge Nelva Gonzales Ramos, an Obama appointee, is expected to last two to three weeks.
In August 2012, a three-judge district court in Washington found that the law discriminated against black and Hispanic voters under Section 5 of the Voting Rights Act. The court called it “the most stringent [voter ID law] in the country.”
But after the Supreme Court’s decision in Shelby County v. Holder freed states like Texas with a long history of voting discrimination from having to approve their voting changes with the federal government, Texas wasted no time in implementing the blocked law. “With today’s decision, the state’s voter ID law will take effect immediately,” Texas Attorney General Greg Abbott announced hours after the court’s ruling. Groups like the Justice Department, NAACP Legal Defense Fund and the Mexican American Legislative Caucus are now challenging the law under Section 2 of the VRA, which remains on the books.
During the first round of court proceedings, Texas admitted that between 600,000 to 800,000 registered voters in the state lacked a 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. Those without a voter ID needed to pay for additional documentation to confirm their identities, with the cheapest option being a birth certificate for $22. Attorney General Eric Holder called it a “poll tax.”
Getting a voter ID in Texas isn’t as easy as you’d think. There are no DMV offices in eighty-one of 254 counties in the state, with some voters needing to travel up to 250 miles to obtain a 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 a voter ID. (Hispanics in Texas are also twice as likely as whites to not have a car). So far, Texas has issued only 279 new voter IDs, even though hundreds of thousands of registered voters lack one.
The court based its ruling on three important facts:
(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.
“A law that forces poorer citizens to choose between their wages and their franchise unquestionably denies or abridges their right to vote,” wrote Judge David Tatel. “The same is true when a law imposes an implicit fee for the privilege of casting a ballot.”
Those burdened by the law include 92-year-old Ruby Barber of Waco, who has voted in every presidential election since 1944 but could not easily obtain a voter ID because she does not have a driver’s license, birth certificate or marriage license. “I’ve voted all my life, and not to be able to vote—it just breaks my heart,” she said.
During the first test of the law last November, many voters—including a state judge and both candidates for governor—had to sign an affidavit to vote because the names on their IDs did not match their names on the voter registration rolls. Ninety-year-old Speaker of the House Jim Wright was denied a voter ID before his assistant procured a certified copy of his birth certificate.
Texas passed the voter ID law as “emergency” legislation at the beginning of 2011. It’s unclear what emergency the Texas legislature was responding to—since 2004, there have been only four cases of voter impersonation in the state. (In 2010, Abbott led a controversial armed raid of the offices of a Houston voter registration group, but no charges were ever filed.)
This case has important national significance for a few reasons.
Number one: as mentioned earlier, Texas passed the strictest voter ID law in the country and has done little to ensure that every registered voter will be able to cast a ballot. If the law is approved, it will set a precedent for similarly strict measures to be adopted elsewhere.
Number two: Texas has a significant governor’s race between Abbott and State Senator Wendy Davis in 2014. It is also trending blue in the long term. Texas Republicans believe voter ID will reduce turnout among Democratic-aligned voters. The former political director of the Texas Republican Party argued in 2007 that a voter ID law would add 3 points to the GOP vote.
Number three: Texas is a perfect case study for whether the existing provisions of the VRA can protect voters from discrimination. Since the federal courts have already judged Texas’s law to be discriminatory, any subsequent decision approving the law would show the devastating impact of the Shelby decision. Thus far in 2014, the federal courts have blocked Wisconsin’s voter ID law but did not grant a preliminary injunction against North Carolina’s tough new voting restrictions.
Already, jurisdictions in Texas, like the city of Pasadena, have changed their voting rules to dilute black and Hispanic representation. “The Justice Department can no longer tell us what to do,” Pasadena Mayor Johnny Isbell said when the city passed a referendum last year eliminating two Hispanic city council seats.
Number four: the Justice Department and civil rights groups are arguing that Texas’s voter ID law was enacted with intentional discrimination and the state should have to approve its voting changes with the federal government for a period of time as a result. This little-used bail-in provision has been described by Travis Crum of Yale Law School as the “secret weapon” of the VRA. But it’s very difficult to prove intentional discrimination and only nine jurisdictions have been bailed-in to the VRA since 1975.
However, a federal court also found in 2012 that Texas’s redistricting maps were “enacted with discriminatory purpose.” Like voter ID, that case is now being tried again under Section 2. “The State of Texas has employed a variety of devices to restrict minority voters’ access to the franchise,” DOJ argues. “In the absence of relief…there is a danger that Texas will continue to violate the Voting Rights Act and the voting guarantees of the Fourteenth and Fifteenth Amendments in the future.”
Texas has lost more Section 5 lawsuits than any other state. If there’s any place in the country that needs to be monitored under the VRA, this is it.
Read Next: How North Carolina will determine the future of the Voting Rights Act
On Wednesday, August 6, the country celebrated the forty-ninth anniversary of the Voting Rights Act, the most impactful civil rights law ever passed by Congress. Two days later, a federal judge in North Carolina denied a preliminary injunction to block key provisions of the state’s new voting law, widely described as the most onerous in the country.
North Carolina’s new voting restrictions will now be in effect for the 2014 midterms and beyond, pending a full trial in July 2015, a month before the fiftieth anniversary of the VRA. The federal government and plaintiffs including the North Carolina NAACP and the League of Women Voters argued during a hearing last month that three important parts of the law—a reduction in early voting from seventeen to ten days, the elimination of same-day registration during the early voting period, and a prohibition on counting provisional ballots cast in the wrong precinct—disproportionally burdened African-American voters in violation of Section 2 of the VRA and should be enjoined before the 2014 election.
As evidence, plaintiffs showed that in recent elections African-Americans were twice as likely to vote early, use same-day registration and vote out-of-precinct. In 2012, for example, 300,000 African-Americans voted during the week of early voting eliminated by the state, 30,000 used same-day registration and 2,500 cast out-of-precinct ballots. Overall, 70 percent of blacks voted early and African-Americans made up 42 percent of new same-day registrants.
Judge Thomas Schroeder of the Middle District of North Carolina disagreed. “Plaintiffs’ complaints state plausible claims upon which relief can be granted and should be permitted to proceed in the litigation,” he wrote in a 125-page opinion. “However, a preliminary injunction is an extraordinary remedy to be granted in this circuit only upon a ‘clear showing’ of entitlement…. Even assuming Plaintiffs are likely to succeed on the merits, they have not demonstrated they are likely to suffer irreparable harm—a necessary prerequisite for preliminary relief—before trial in the absence of an injunction.”
Basically, Schroeder, a George W. Bush appointee, said that even if African-American voters face burdens as a result of the new restrictions, they will still be able to openly participate in the electoral process and will not face “ an inequality of opportunity to vote.”
It’s important to note that this is just a preliminary opinion and the outcome was not surprising. The most contentious aspect of the law—the requirement that voters produce specifics forms of government-issued ID to cast a ballot—doesn’t go into effect until 2016 and was not the focus of the injunction pleadings. In April, a federal judge in Wisconsin blocked the state’s voter ID law under Section 2 of the VRA following a full trial.
As I wrote following the four-day hearing in Winston-Salem last month, it’s very possible the plaintiffs could lose the preliminary injunction hearing and win the trial in July 2015, when they’ll have more time, more expertise and more evidence, like voter ID, to draw on. It’s tougher for plaintiffs to win a preliminary injunction than a full trial, especially in an off-year election when voter turnout is lower and restrictions on voting are perceived as less costly.
That said, this is a significant opinion, and one that shows why Section 2 of the Voting Rights Act is no substitute for Section 5. Indeed, North Carolina is the perfect case study for what happened after the Supreme Court gutted the Voting Rights Act. (If the ruling leads to diminished voter turnout, particularly among African-Americans and young voters, it could also swing the close Senate race between Democrat Kay Hagan and Republican Thom Tillis, which could very well determine which party controls the Senate next year.)
Let’s review the legislative history. In April 2013, the North Carolina House passed a sixteen-page voter ID bill that required a government-issued photo ID to cast a ballot, but also accepted student IDs from state universities and public employee IDs. The bill languished in the North Carolina Senate until the Supreme Court overturned Section 4 of the VRA, freeing states like North Carolina with the worst history of voting discrimination from having to clear their voting changes with the federal government under Section 5.
Within a month of the Shelby County v. Holder decision, the Senate introduced a fifty-seven-page “monster” (so dubbed by Democracy NC) that required strict voter ID (no student IDs, no public employees IDs allowed), cut early voting, eliminated same-day registration, repealed out-of-precinct voting, axed pre-registration for high school students, ended public financing of judicial elections, increased the number of poll challengers and even got rid of Citizen Awareness Month, which urged North Carolinians to register to vote.
“It was a 90 percent different bill,” testified Representative Rick Glazier, a Democrat from Cumberland County. “It was an ambush on the people of North Carolina.”
The Senate took only two days to debate the new bill, which repealed or curtailed nearly every reform that encouraged people to vote in the state. The House passed the Senate’s version in a matter of hours, with no amendments offered or public input. “It was, bar none, the worst legislative process I’ve ever been through,” Glazier said. “If you were writing a textbook on legislation, this was a textbook example of how not do it.”
Not only did North Carolina no longer have to approve its voting changes with the federal government thanks to the Supreme Court’s decision, the burden of proof shifted from the state to the voters most impacted by the law, as did the legal standard needed to show discrimination under the VRA. “You have the burden of showing clear evidence,” Judge Schroeder reminded the plaintiffs several times during the hearing.
Under Section 5, North Carolina could not implement any voting change that left minority voters worse off. That was clearly the case with regards to the new voting law, since African-Americans are 23 percent of registered voters in North Carolina, but made up 29 percent of early voters in 2012, 34 percent of those without state-issued ID and 41 percent of those who used same-day registration.
But under Section 2, plaintiffs have to show that the “totality of circumstances” leaves a minority group with “less opportunity than other members of the electorate to participate in the political process.” The simplicity of Section 5 has been replaced by the complexity of Section 2. What would have been a slam-dunk case for the government and civil rights groups is now a long slog, with a very uncertain outcome.
As Judge Schroeder noted in his opinion, “Vote-denial claims under Section 2 have thus far been relatively rare, perhaps due in part to the fact that since 1965, many jurisdictions—including many North Carolina counties—were under federal control and barred from enacting any new voting procedure without first obtaining ‘pre-clearance’ under Section 5 of the VRA from the DOJ or the United States District Court for the District of Columbia.”
“If this ruling stands,” wrote Rick Hasen, “it shows that Section 2 and the Constitution’s Equal Protection Clause are poor substitutes in protecting voting rights for Section 5 of the Voting Rights Act.”
Members of Congress introduced legislation in January to resurrect Section 5. The Voting Rights Amendment Act of 2014 has 171 co-sponsors in the House, but no Republican co-sponsor in the Senate. There is little urgency in Congress to pass it. In a perfect world, this week’s North Carolina ruling would change that.