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Ari Berman | The Nation

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Ari Berman

Ari Berman

 On American politics and policy.

Voting Rights Victory in North Carolina

Voter

(Reuters/Larry Downing)

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.

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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

Eric Holder’s Voting Rights Legacy

Eric Holder

(AP photo/J. Scott Applewhite)

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.

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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.

 

Read Next: Barbara Lee Was Right in 2001. She’s Still Right Now.

A Major Blow to Voting Rights in Wisconsin

Polling Place

(AP Photo/Charlie Riedel)

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.

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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?

Read Next: Hundreds of Voters Are Disenfranchised by North Carolina's New Voting Restrictions

Hundreds of Voters Are Disenfranchised by North Carolina’s New Voting Restrictions

(Reuters)

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.

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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.

Ohio Early Voting Cuts Violate the Voting Rights Act

Early voting

Early voting in Ohio in 2012. (AP Photo/Mark Duncan)

Ohio keeps trying to cut early voting and the federal courts keep striking the cuts down.

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.

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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?

Will Texas Get Away With Discriminating Against Voters?

polling location

A sign guides voters to a polling location as they line up to cast their votes in 2012, in Dallas. (AP Photo/Tony Gutierrez)

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.

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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

North Carolina Becomes the Latest Casualty of the Supreme Court’s Voting Rights Act Decision

Moral March to the Polls

A protester at a "Moral March to the Polls" rally in Winston-Salem on July 7

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.”

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“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.

 

Read Next: North Carolina will determine the future of the Voting Rights Act. 

North Carolina Will Determine the Future of the Voting Rights Act

Rosanell Eaton

93-year-old Rosanell Eaton heading into federal court (photo by Jennifer Farmer, Advancement Project)

Winston-Salem—In 1940, 19-year-old Rosanell Eaton took a two-hour mule ride to the Franklin County courthouse in eastern North Carolina to register to vote. The three white male registrars told her to stand up straight, with her arms at her side, look straight ahead and recite the preamble to the Constitution word-for-word from memory. Eaton did so, becoming one of the few blacks to pass a literacy test and make it on the voting rolls in the Jim Crow era.

Eaton, a granddaughter of a slave, is one of the unsung heroes of the civil rights movement. She’s devoted her life to expanding the franchise, personally registering 4,000–5,000 new voters before losing count. “My forefathers didn’t have the opportunity to register or vote,” she said. “It is my intention to help people reach that point when they could do something.”

Now, as a result of North Carolina’s new voting restrictions—widely regarded as the most onerous in the country—the 93-year-old activist could be disenfranchised by the state’s voter ID requirement because the name on her driver’s license does not match the name on her voter registration card.

Eaton testified in federal court in Winston-Salem this week against North Carolina’s voting law, as part of a challenge brought by the Justice Department and civil rights groups to enjoin key provisions before the 2014 election under Section 2 of the Voting Rights Act. “Voting should be free and accessible to everyone,” she told Judge Thomas Schroeder of the Middle District Court of North Carolina.

Eaton was always the first one in the courtroom, looking resplendent in a fashionable pantsuit and matching hat. Her presence and testimony was a reminder of the long struggle to win the right to vote and the serious consequences of restricting that right today.

Eleven witnesses—a mixture of civil rights activists, legislators and election experts—testified against the law, known as House Bill 589, over the course of four days. I spent the week in court alongside Eaton. Here are my ten takeaways from the hearing:

1. The law disproportionately burdens African-American voters.

The plaintiffs, including DOJ, the North Carolina NAACP and the League of Women Voters, focused on three specific provisions of the law—the reduction of early voting from seventeen days to ten days, the elimination of same-day registration during the early voting period and the prohibition on counting provisional ballots cast in the right county but wrong precinct. 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.

“It is as if House Bill 589 were designed to deter the very practices that encourage turnout among blacks,” testified expert witness Barry Burden, a professor of political science at the University of Wisconsin-Madison.

2. The case is not about voter ID (yet).

The most controversial provision of the new law doesn’t go into effect until 2016 and thus wasn’t discussed much in court. But the state is doing a test run in 2014, where poll workers will ask for photo ID but voters don’t have to show it. Because of the potential for confusion, the North Carolina NAACP asked Judge Schroeder to enjoin the test run. Expect to hear a lot more about voter ID when the case goes to a full trial in July 2015.

3. Voter fraud is not a problem in North Carolina.

During the 2004 and 2008 elections, there was 1 case of voter impersonation out of 7.8 million votes cast. “I am not aware of specific instances of voter impersonation,” North Carolina elections director Kim Strach said in her videotaped deposition, which was shown in court.

The state presented no tangible evidence of voter fraud to justify the new restrictions. “There is no evidence we had problems with these enhanced forms of participation,” Senator Dan Blue, the Democratic minority leader, testified. (Ironically, the law does nothing to restrict absentee voting, where the potential for fraud is greatest.)

Lawyers for the state seemed to be arguing, in the vein of Donald Rumsfeld, that the absence of evidence is not evidence of absence. “If you don’t look for voter fraud, how can you find it?” testified Phil Strach (husband of Kim Strach), the former general counsel for the North Carolina GOP. (If a tree falls in the forest…)

Chris Coates, the former head of the Voting Section in the Bush Justice Department, who represented Judicial Watch, said the state was under no obligation to produce instances of fraud as a rationale for the law, despite the rhetoric of the GOP legislators who passed the bill. “If the interest trying to be achieved is combatting voter fraud, there does not have to be evidence that fraud has been committed in the state,” he said.

4. The Supreme Court’s Shelby County decision transformed the legal and legislative landscape on voting rights.

A month after the Supreme Court’s decision overturning Section 4 of the VRA, the North Carolina Senate took a sixteen-page bill passed by the House, which dealt exclusively with voter ID, and transformed it into a fifty-seven-page voter suppression behemoth.

“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.”

5. Section 2 is no substitute for Section 5.

Not only did North Carolina not 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.

Under Section 5, North Carolina could not implement any voting change that left minority voters worse off. 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.

“As a practical matter, African-Americans will have less opportunity than white voters to register, cast a ballot and have that ballot counted,” DOJ attorney Bert Russ argued.

North Carolina Deputy Attorney General Alexander Peters countered that voters had no constitutional right to expanded voting opportunities like early voting. “The fact that they were good policies doesn’t mean they are entitled to them.”

“We’re not contending that Section 2 requires the adoption of early voting, same-day registration or the counting of out-of-precinct ballots,” Russ responded. “But in cases where these reforms were already adopted, where black voters disproportionately relied on them…when the state chooses to eliminate them without good reason, we’re likely to prevail on the merits.”

North Carolina is the first post-Shelby challenge to new forms of vote denial and abridgement other than voter ID (a judge in Wisconsin struck down a voter ID law under Section 2 for the first time in May). There are few relevant precedents in this area, which makes the outcome more uncertain.

6. North Carolina history cannot be ignored.

In 1965, black registration lagged fifty points behind white registration in the state. Decades after the passage of the VRA, the gap narrowed but remained significant. That changed starting in 2000, with the adoption by the legislature of early voting (2000), the counting of out-of-precinct provisional ballots (2005) and same-day registration (2007). North Carolina became one of the most progressive states in the country with regard to voting rights. As a consequence, black turnout increased 65 percent from 2000 to 2012—in 2008 and 2012, African-Americans registered and voted at a higher rate than whites for the first time in state history.

A year later the legislature repealed the reforms that boosted black participation. “In one bill, they obliterated what many of us worked on for twenty to thirty years to increase voter participation,” Blue testified.

MIT political scientist Charles Stewart, an expert witness for DOJ, said the elimination of same-day registration will reduce black participation by 3 percent—a significant number in a state known for close elections, where Obama won by 14,000 votes in 2008.

In 1996, North Carolina ranked forty-third nationally in voter turnout. By 2012, that number had jumped to eleventh. Now North Carolina is poised to tumble downward again. “Based on my experiences, you will have angry voters, you will have long lines, people will leave without voting,” testified Gary Bartlett, the head of the state board of elections from 1993 to 2013.

7. This is not just a black-versus-white issue.

“Young voters are uniquely targeted by this law,” argued Democratic super-lawyer Marc Elias, on behalf of a group of student voters. HB 589 ended pre-registration for 16- and 17-year-olds, and eliminated state university IDs as an acceptable voter ID. (You can enter a federal courthouse in North Carolina with a state university ID, but you won’t be able to vote with one in 2016.) In addition, young voters were 8.9 percent of the electorate in 2012, but 25 percent of same-day registrants. Elias is making the novel argument that the abridgement of young voter participation violates the Twenty-sixth Amendment, which lowered the voting age from 21 to 18. Judge Schroeder seemed skeptical of this argument.

Blacks and students weren’t the only ones from benefitting from the state’s voting reforms. Dale Ho of the ACLU noted that in 2010, 200,000 North Carolinians voted early, 27,000 used same-day registration and 5,000 cast out-of-precinct provisional ballots.

8. As goes North Carolina, so goes the nation.

Control of the US Senate may hinge on the outcome of the Senate race between Kay Hagan and Thom Tillis in North Carolina. A drop in voter turnout because of the voting restrictions could swing the election to Tillis and the Senate to the GOP.

“If the court doesn’t grant an injunction, there will be African-Americans who won’t be able to use same-day registration, who won’t have their provisional ballots counted, who won’t be able to get to early voting or will face obstacles if they do,” Russ argued. “Even though the problem will be magnified in a presidential election, there will be problems in November.”

On a more fundamental level, North Carolina brazenly took advantage of the Shelby decision to pass the country’s most sweeping package of voting restrictions since 1965. If the state gets away with it, expect other states to follow suit.

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9. The voting restrictions could lead to a voter backlash.

In 2012, we saw that efforts to restrict the right to vote in states like Ohio led to higher voter turnout among targeted groups. While I’m somewhat skeptical of the “voter suppression leads to higher voter turnout” theory, the Moral Monday movement in North Carolina has done a superb job of organizing voter discontent against the GOP legislature.

On the fiftieth anniversary of Freedom Summer, the North Carolina NAACP is placing fifty young organizers in fifty counties with a goal of registering 50,000 new voters. “How many of you are going to leave here and remember the blood of the martyrs?” the Rev. William Barber of the North Carolina NAACP asked at a “Moral March to the Polls” rally in Winston-Salem after the first day of court hearings. Hundreds of hands went up.

10. This is just the beginning of the legal battle.

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. “I’m not here to decide the ultimate merits of the case,” Schroeder said. “The question is the urgency of the injunction…. What is the irreparable harm before November?”

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.

As for the judge, Schroeder, a George W. Bush appointee, is regarded as one of the smartest and most conservative judges on the Middle District of North Carolina. He asked the plaintiffs a lot of questions about the standard he should use to examine the evidence and the harms to prospective voters in 2014. He seemed to grasp the significance of the case and struck me as tough but fair. He’s expected to issue a ruling sometime in the next month.

 

Read Next: Ari Berman on why the Voting Rights Act is needed now more than ever

North Carolina’s ‘Monster’ Voting Law Challenged in Federal Court

North Carolina NAACP Moral Monday

Rev. William Barber of the North Carolina NAACP speaks at a “Moral March to the Polls” rally in downtown Winston-Salem. Photo by Rob Stephens.

Winston-SalemIn March 1965, Carolyn Coleman, a young activist with the Alabama NAACP, marched to Montgomery in support of the Voting Rights Act.

After the passage of the VRA, Coleman spent a year registering voters in Mississippi, where her friend Wharlest Jackson, an NAACP leader in Natchez, was killed in early February 1967 by a car bomb after receiving a promotion at the local tire plant. A year later, Coleman was in Memphis organizing striking sanitation workers when Martin Luther King Jr. was assassinated.

Coleman devoted her life to expanding the franchise for the previously disenfranchised, serving as president of the North Carolina NAACP and Southern voter education director for the national NAACP. For the past twelve years, she’s been a county commissioner in Greensboro’s Guilford County.

Nearly fifty years after marching for voting rights in Alabama, Coleman testified in federal court today in Winston-Salem against North Carolina’s new voting restrictions, which have been described as the most onerous in the nation. The law mandates strict voter ID, cuts early voting by a week and eliminates same-day registration, among many other things. After the bill’s passage, “I was devastated,” Coleman testified. “I felt like I was living life over again. Everything that I worked for for the last fifty years was being lost.”

The federal government and civil rights groups, including the ACLU and the North Carolina NAACP, asked Judge Thomas Schroeder, a George W. Bush appointee for the Middle District of North Carolina, to enjoin key provisions of the law before the 2014 midterms under Section 2 of the VRA. They’re specifically targeting the cuts to early voting, the elimination of same-day registration during the early voting period and the prohibition on counting provisional ballots accidentally cast in the wrong precinct. (The new voter ID law, unlike the above provisions, doesn’t go into effect until 2016, although the state is doing a “test run” in 2014 where poll workers can ask for photo ID although voters don’t have to provide it.) The hearing is expected to last until later in the week, with a decision in the next month or so.

“These provisions have the purpose and result of denying and abridging the right to vote for African-Americans,” argued DOJ attorney Catherine Meza. The plaintiffs say the new restrictions disadvantage minority voters at a greater rate than white voters, in violation of Section 2’s ban on racial discrimination in voting.

Consider this data, via the DOJ’s brief:

Seventy percent of African-Americans voted early in 2012, compared to 51 percent of whites. African-Americans were also more likely to vote early during the now-eliminated first week of early voting, when 900,000 North Carolinians cast their ballots—35 percent of the total vote in 2012.

Black voters were over 35 percent more likely than white voters to register using same-day registration.

And black voters were twice as likely to cast an out-of-precinct provisional ballot as white voters.

According to expert witness Charles Stewart, a political scientist at MIT, if the law had been in effect in 2012, “over 30,000 African-Americans who registered during the same-day registration period would have been unable to register during that period, almost 300,000 [black] early voters would have been shoehorned into more congested early voting and Election Day voting sites, and at least 2,000 African-American voters would have had their out-of-precinct votes left uncounted.”

North Carolina officials responded that the voting changes weren’t a big deal. The new law “puts North Carolina in the mainstream of other states with regard to election laws,” argued Butch Bowers, a South Carolina—based lawyer representing North Carolina Governor Pat McCrory. Bowers’s statement implicitly suggested that there was something extreme about adopting election procedures that lead to higher voter turnout.

Indeed, the new voting law repealed or curtailed nearly every reform passed by the state in the past two decades that encouraged more people to vote. In 1996, North Carolina ranked forty-third nationally in voter turnout. By 2012, thanks to measures like same-day registration and expanded early voting, North Carolina ranked eleventh.

In March 1965, when LBJ introduced the VRA, 46.8 percent of black North Carolinians were registered to vote compared to 96.8 percent of whites. But in 2008 and 2012, for the first time in state history, black turnout exceeded white turnout. The legislature “targeted the very reforms that expanded voting opportunities for African-Americans,” argued DOJ attorney Meza.

North Carolina is the perfect case study for what happened after the Supreme Court gutted the Voting Rights Act.

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 from having to clear their voting changes with the federal government.

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 encouraged North Carolinians to register to vote. The bill passed in two days, with no public input. Rev. William Barber, president of the North Carolina NAACP, calls it “the greatest attack on voting rights since Jim Crow.”

The law likely would’ve never been introduced by the legislature—let alone cleared by the federal government, since the burden of proof would have been on the state to show an absence of voting discrimination—if the Supreme Court had preserved Section 4.

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Instead, under Section 2, the burden of proof is on the plaintiffs and the law is in effect unless Judge Schroeder grants a preliminary injunction. (There will be a full trial on the constitutionality of the law in July 2015.) We’re in uncharted territory. Section 2 has heretofore been used mainly to challenge discriminatory election systems or redistricting plans, not block recent vote denial efforts like cutting early voting or eliminating same-day registration.

After the hearing, eight hundred North Carolinians gathered in downtown Winston-Salem for a “Moral March to the Polls” event protesting the law. “I know it’s hot out here,” Barber told the crowd. “But it’s going to be hotter if you let them take our vote away.”

 

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Where Are the GOP Supporters of Voting Rights?

Thad Cochran, John McCain and Roger Wicker

Republican Senators Thad Cochran, John McCain and Roger Wicker at a Cochran for Senate rally on Monday, June 23, 2014. (AP/Rogelio V. Solis)

Last night, Mississippi Senator Thad Cochran narrowly defeated Tea Party challenger Chris McDaniel, in part by courting black voters. “Voting rights has been an issue of great importance in Mississippi,” Cochran said yesterday.

Black turnout increased significantly in yesterday’s runoff election, which helped Cochran win by 6,000 votes. “In Mississippi’s twenty-four counties with a majority black population, turnout increased an average of 40 percent over the primary,” reported The Washington Post.

In 2006, Cochran was one of ninety-eight Senators who voted unanimously to reauthorize the temporary provisions of the Voting Rights Act for another twenty-five years. But last year, Cochran applauded the Supreme Court’s decision in Shelby County v. Holder invalidating Section 4 of the VRA, which freed states like Mississippi, with the worst history of voting discrimination, from having to approve their voting changes with the federal government under Section 5 of the act.

“I think our state can move forward and continue to ensure that our democratic processes are open and fair for all without being subject to excessive scrutiny by the Justice Department,” Cochran said.

Cochran was, in effect, celebrating a decision gutting a law that he supported just a few years earlier.

Today, on the first anniversary of the Shelby decision, the Senate Judiciary Committee held the first congressional hearing on the Voting Rights Amendment Act of 2014. Six months after its introduction in January, the new legislation to update the VRA has garnered modest bipartisan support in the House, thanks to former House Judiciary Committee Chairman Jim Sensenbrenner (R-WI), but no GOP co-sponsors in the Senate. There are nineteen Republican Senators still serving who voted for the VRA in 2006, but none have stepped forward to sponsor the new bill.

Today’s hearing illustrated the new partisan divide when it comes to voting rights. Democrats on the Judiciary Committee and three civil rights advocates who testified—Texas State Senator Sylvia Garcia, Georgia NAACP president Francys Johnson and NAACP Legal Defense Fund President Sherrilyn Ifill—unanimously supported the modest VRA fix. “If the Voting Rights Act is not modernized, you are effectively ending the Second Reconstruction of the United States,” Johnson said.

Republicans on the Judiciary Committee and two critics of the VRA who testified—GOP lawyer Michael Carvin and Abigail Thernstrom of the American Enterprise Institute—unanimously opposed the legislation. “The decision in Shelby County was absolutely right,” Thernstrom said. “The statute had become a period piece.”

GOP senators and conservative witnesses maintained that Section 2 of the VRA is an adequate replacement for Section 5. Section 2, unlike Section 5, applies nationwide, but puts the burden of proof on plaintiffs to challenge a voting change, usually requiring lengthy litigation. Wisconsin’s voter ID law was blocked under Section 2, but the statute hasn’t been used much to challenge these new types of voting restrictions.

Civil rights advocates argued that Section 2 is no substitute for Section 5. “We reject the notion that the right to vote should be premised on a voter’s ability to find a lawyer and file a lawsuit,” Ifill said.

North Carolina, which two months after the Shelby decision passed the country’s toughest package of voting restrictions, is a good case study for the difference between Sections 2 and 5. As I explained last year:

Under Section 5 of the VRA—which SCOTUS paralyzed by invalidating the states covered under Section 4—North Carolina would have had to prove to the Justice Department or a three-judge court in Washington that its new law was not discriminatory. The burden of proof would have been on the state and the law would have been frozen until DOJ or the courts weighed in. Given the clear evidence of disparate racial impact in this case—African-Americans are 23 percent of registered voters in the state, 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—the law would have almost certainly been rejected.

Instead, voting rights groups had to sue North Carolina under Section 2 of the VRA, which applies nationwide but is much more cumbersome than Section 5. Now the burden of proof is on the plaintiffs to show evidence of discrimination and the law is in effect until the courts block it. Unless a federal judge in Winston-Salem grants a preliminary injunction in the summer of 2014, the new restrictions will be in place during the 2014 midterm elections (except for voter ID, which goes into effect in 2016). Those who have been discriminated against will have no recourse until after the election has been decided, when there’s a full trial in 2015, on the fiftieth anniversary of the VRA.

Texas, which has implemented a voter ID law found to be discriminatory by the federal courts under Section 5, is another glaring example of modern-day voting discrimination. Texas State Senator Garcia testified about Pasadena, Texas, which she represents.

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In November 2013, voters in Pasadena—a city of 150,000 near Houston where Hispanics make up a third of the vote— narrowly backed a referendum changing how districts are drawn in the city. As SCOTUSblog reported, there were previously eight city council districts in Pasadena. But the amendment shrunk the number of districts to six, eliminating two predominantly Hispanic districts, while creating two citywide “at-large” seats that will be decided by the town’s white majority. It’s an example of the type of discriminatory voting change that would’ve likely been blocked by Section 5 of the VRA, but is now in effect as a result of the Shelby decision. “The Justice Department can no longer tell us what to do,” said Pasadena Mayor Johnny Isbell.

The Voting Rights Act has always enjoyed strong bipartisan support. But since Barack Obama’s election, GOP-controlled states have embarked on the most significant effort to restrict access to the ballot since Reconstruction—passing new voting restrictions in twenty-two states since 2010—and the bipartisan consensus for the VRA in Congress has collapsed.

As long as support for the VRA remains divided along partisan lines, there’s no chance that a new fix for the law will pass. As Rick Hasen first suggested, Senator Cochran would be a good candidate to step up and break the congressional logjam. Wrote The New Republic’s Alec MacGillis: “Is there any more fitting way for Thad Cochran to express recognition of the role that African-American voters played in his survival—in the face of threats of voter intimidation from his Republican opponent—than to guarantee that black voters in Mississippi and elsewhere are unencumbered in their access to the polls?”

 

Read Next: Ari Berman on why the Voting Rights Act is needed now more than ever.

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