Ari Berman | The Nation

Ari Berman

Ari Berman

 On American politics and policy.

Thousands of Voters Are Disenfranchised by North Carolina’s Voting Restrictions

A voting sign directing voters is seen before polls open at the Grove Presbyterian Church in Charlotte, North Carolina. (Reuters/Chris Keane)

A month after the Supreme Court gutted the Voting Rights Act, North Carolina passed the country’s most sweeping voting restrictions. The Supreme Court refused to block key parts of the law—cuts to early voting, the elimination of same-day registration, a prohibition on voting in the wrong precinct—just weeks before the 2014 Election. As a result of the new restrictions, there were lengthy lines and confusion at many polling places, and longtime voters were turned away from the polls.

Democracy North Carolina has estimated that “the new voting limitations and polling place problems reduced turnout by at least 30,000 voters in the 2014 election.” In a new report, the group analyzed provisional ballots cast during the 2014 election and concluded that 2,344 rejected ballots would have been counted if the new restrictions were not in place.

The new law disproportionately impacted African-American and Democratic voters. African-Americans cast 38 percent of the rejected ballots but comprise only 22 percent of registered voters. Democrats accounted for nearly half of all rejected ballots.

Here are the stories of some of the voters turned away from the polls, as compiled by Democracy NC:

Morris is a middle-aged, African-American Democrat who lives in Wayne County. He lived in Wake County for “25 to 30 years” before moving back to Wayne County, where he grew up. When he tried to vote at a Wayne County early voting site, he was told he needed to vote in Wake because he was registered there. But when he went to Wake County, the election officials sent him back to Wayne. So he made a third trip to an early voting site in Wayne County on the last day of early voting, where he cast a provisional ballot that did not count. He says he remembers the DMV examiner asking him if he wanted to change his registration when he changed his license address to Wayne County, but for some reason that change didn’t go through. Morris is a very committed, regular voter who has a history of voting in midterm and primary elections. But, due to the elimination of same-day registration during early voting, his three attempts to make his voice heard in 2014 were fruitless.

Sherry is a middle-aged, African-American woman in Harnett County. She is retired from the military and finishing a program to become a paralegal. When she moved from Cumberland County to neighboring Harnett County, she updated her license at the DMV, where she thought she had also updated her registration. When she went to vote during early voting, the poll officials told her she was not on the rolls. When she asked questions, poll workers couldn’t answer them and acted frustrated with her, giving her a provisional ballot to complete. She later learned that the ballot was rejected, which she found very disturbing. She loves voting and volunteers to register people to vote. As a college student, her nickname was “Auntie Sam” because she was so committed to voting and registering others.

Dwight is an African-American, Democratic voter in Mecklenburg County. He has voted in the last two presidential elections, but was thwarted in the 2014 election by the elimination of out-of-precinct voting and faulty information from poll workers. He showed up to vote at the same place where he had voted early in 2012. He was redirected to another precinct, but when he arrived there was told that he needed to go to a third precinct. After spending 1.5 hours and going to two different polling places, he “got fed up with the process” and “finally gave up when told that he needed to go to a third place.” He is a casualty of the elimination of out-of-precinct voting.

We’re seeing a disturbing trend in states like North Carolina and Texas, where there’s scant evidence of voter fraud to justify new voting restrictions, but lots of evidence of voters turned away from the polls.

North Carolina’s new voting law—including the strict voter ID provision, which goes into effect in 2016—will be challenged in federal court again this July. The stories of disenfranchised voters should be a central part of the debate.

A Voter-Fraud Witch Hunt in Kansas

Kris Kobach

Kansas Secretary of State Kris Kobach. (AP Photo/Lenny Ignelzi)

In fall 2010, Kansas Secretary of State Kris Kobach held a press conference alleging that dead people were voting in the state. He singled out Alfred K. Brewer as a possible zombie voter. There was only one problem: Brewer was very much alive. The Wichita Eagle found the 78-year-old working in his front yard. “I don’t think this is heaven, not when I’m raking leaves,” Brewer said.

Since his election in 2010, Kobach has been the leading crusader behind the myth of voter fraud, making headline-grabbing claims about the prevalence of such fraud with little evidence to back it up. Now he’s about to become a lot more powerful.

On Monday, Kansas Governor Sam Brownback signed a bill giving Kobach’s office the power to prosecute voter-fraud cases if county prosecutors decline to do so and upgrading such charges from misdemeanors to felonies. Voters could be charged with a felony for mistakenly showing up at the wrong polling place. No other secretary of state in the country has such sweeping prosecutorial power, says Dale Ho, director of the ACLU’s Voting Rights Project.

“It means a person and an office with no experience or background in criminal prosecutions is now going to be making a determination of whether there’s probable cause to bring a criminal case against an individual who may have just made a paperwork mistake,” Ho says. “There is a reason why career prosecutors typically handle these cases. They know what they’re doing.”

Kobach claims there are 100 cases of “double voting” from the 2014 election that he wants to prosecute, but there’s been scant evidence of such fraud in Kansas in past elections. From 1997 to 2010, according to The Wichita Eagle, there were only 11 confirmed cases of voter fraud in the state.

Such fraud has been just as rare nationally, even according to Kobach’s own data, noted The Washington Post:

Kansas’ secretary of state examined 84 million votes cast in 22 states to look for duplicate registrants. In the end 14 cases were referred for prosecution, representing 0.00000017 percent of the votes cast.

Kobach says he needs this extraordinary prosecutorial power because county and federal attorneys are not bringing enough voter-fraud cases. But Kansas US Attorney Barry Grissom said last year that Kobach’s office had not referred any cases of voter fraud to his office. “We have received no voter fraud cases from your office in over four and a half years,” Grissom wrote to Kobach.

Kobach has been a leading proponent of his state’s strict voter-ID law, which decreased turnout by 2 percent in 2012, according to the Government Accountability Office, with the state falling from 28th to 36th in voter turnout following its implementation.

He’s also been the driving force behind Kansas’s 2011 proof-of-citizenship law for voter registration, which requires voters to show a birth certificate or passport to participate in the political process. Twenty-five thousand voters had their registrations “suspended” in the 2014 election because of the law; even the right-wing group True the Vote claimed that only 1 percent of the list were verified non-citizens.

Those wrongly on the list included Da Anna Allen, an Air Force vet. She told The Wichita Eagle:

“It just caught me off guard that I was not registered. I served for a week on a jury trial, which basically told me I was a registered voter. I’m a disabled veteran, so it’s particularly frustrating. Why should I have to prove my citizenship when I served in the military?”

After the Supreme Court found that Arizona’s proof-of-citizenship law violated the National Voter Registration Act, Kansas and Arizona instituted a two-tiered voting system, arguing that those who registered through the federal NVRA form could not vote in state or local elections. That system has it roots in the Jim Crow South.

Kobach, who wrote Arizona’s “papers, please” anti-illegal immigration law, alleges “in Kansas, the illegal registration of alien voters has become pervasive.” That defies common sense, as Johnson County District Attorney Steve Howe pointed out. “Why would an illegal alien want to go to vote and draw attention to himself?” Howe asked.

Kobach has asked the Supreme Court to restore the proof-of-citizenship law. The Court will decide on June 25 whether to take the case. If Kobach succeeds, proof-of-citizenship laws will spread to more states, and Kobach’s voter-fraud crusade will become even more influential.

Hillary Clinton’s Bold Plan for Voting Rights

Hillary Clinton delivers a speech at Texas Southern University in Houston on June 4, 2015 (AP Photo/Pat Sullivan).

Hillary Clinton was a senior in high school when she watched on a black-and-white television as President Lyndon Johnson signed the Voting Rights Act.

Fifty years later, the VRA—the country’s most important civil-rights law—has been gutted by the Supreme Court and voting rights are under attack across the country. From 2011 to 2015, 395 new voting restrictions have been introduced in 49 states, according to the Brennan Center for Justice, and 21 states have adopted new laws making it harder to vote, 14 of which will be in effect for the first presidential cycle in 2016.

Clinton sounded the alarm about the widespread push to roll back voting rights during a high-profile speech in Texas today and offered innovative solutions to fix our broken political system.

“What is happening is a sweeping effort to disempower and disenfranchise people of color, poor people and young people from one end of our country to the other,” Clinton said. She criticized the GOP contenders for president for “systematically and deliberately trying to stop millions of Americans from voting” by peddling a “phantom epidemic of voter fraud.”

She offered three major policy ideas for expanding voting rights:

1. Automatically register voters

Up to a third of Americans are not registered to vote. Clinton proposed fixing that problem by automatically registering every American when they turn 18 unless they opt out. Universal, automatic voter registration—recently adopted by states like Oregon—would add 50 million Americans to the voting rolls. “I think this would have a profound impact on our elections and our democracy,” Clinton said.

2. Expand early voting

Fourteen states have no form of early voting before Election Day, and many others have limited days and hours. Clinton proposed a minimum of 20 days of early voting nationwide, with expanded hours on nights and weekends. “Early, in-person voting will reduce those long lines and give more citizens the chance to participate, especially those who have work or family obligations that make it difficult to get to the polls on Election Day,” she said.

Unfortunately, many states continue to move in the opposite direction. Republicans have killed bills to expand early voting in fifteen states so far this year, according to Carolyn Fiddler of the Democratic Legislative Campaign Committee.

3. Restore the Voting Rights Act

Nine of 15 states that previously had to submit their voting changes with the federal government before the Supreme Court gutted the VRA have passed new voting restrictions since 2010. The Supreme Court’s decision has had a devastating impact in states like Texas, whose strict voter-ID law was previously blocked under the VRA but is now in effect, leading to many longtime voters being turned away from the polls.

“We need a Supreme Court who cares more about the right to vote of a person than the right to buy an election of a corporation,” Clinton said. Efforts to restore the VRA have gone nowhere in Congress, even after 100 lawmakers traveled to Selma to observe the 50th anniversary of Bloody Sunday.

These policy proposals would make it easier for millions of Americans to cast a ballot and participate in the political process. Clinton’s speech signaled that voting rights will be a major issue in the 2016 race. Lawyers affiliated with her campaign have already filed suit against restrictive voting laws in Ohio and Wisconsin and have hinted that more lawsuits are to come.

It’s unfortunate that voting rights has become such a partisan issue. For many years both Republicans and Democrats overwhelmingly supported the VRA. Only recently, particularly after the election of Barack Obama, has the issue become so politicized, with GOP lawmakers passing new laws curtailing access to the ballot.

Many in the media will no doubt report that Hillary’s policy proposals are intended to boost her campaign and core Democratic constituencies. Regardless of the motive, expanding voting rights is good for everybody. There’s no equivalence between policies that make it easier to vote and policies that make it harder to vote.

The Conservatives Who Gutted the Voting Rights Act Are Now Challenging ‘One Person, One Vote’

(AP Photo/Matt Rourke)

A moderator slides a voter’s ballot into a box at the Woodstock Town Hall in New Hampshire. (AP Photo/Matt Rourke)

Ed Blum, who brought the case that led to the gutting of the Voting Rights Act in 2013, is now going after the historic principle of “one person, one vote.” The Supreme Court decided on Tuesday to hear Evenwel v. Abbott, Blum’s latest case, which challenges the drawing of state Senate districts in Texas. The obscure case could have major ramifications for political representation.

Blum first began attacking the Voting Rights Act after losing a Houston congressional race to a black Democrat in 1992 and founded the Project on Fair Representation in 2005 to challenge the constitutionality of the VRA. The Evenwel case doesn’t deal directly with the VRA but on how districts should be calculated. Since the Supreme Court’s 1964 Reynolds v. Sims decision, districts have been drawn based on the total population of an area. Blum instead wants lines to be drawn based only on eligible voters—excluding children, inmates, non-citizens, etc. from counting toward representation.

If that happened, legislative districts would become older, whiter, more rural, and more conservative, rather than younger, more diverse, more urban, and more liberal. “It would be a power shift almost perfectly calibrated to benefit the Republican party,” explains University of Texas law professor Joey Fishkin. “The losers would be urban areas with lots of children and lots of racially diverse immigrants. The winners would be older, whiter, more suburban, and rural areas. It would be a power shift on a scale American redistricting law has not seen since the 1960s. While not nearly as dramatic as the original reapportionment revolution, it would require every map in every state to be redrawn, with the same general pattern of winners and losers.”

Demographically, the gap between Republicans and Democrats is wider than it has ever been. “House Republicans are still 87 percent white male, compared to 43 percent of House Democrats—the widest gap we’ve ever seen,” explains Dave Wasserman, House editor of the Cook Political Report. “In terms of composition of districts, the median GOP district is 76% white, while the median Dem district is 49% white—again, the widest gap we’ve ever seen. Overall, the median House district is 68% white, compared to 63% for the nation as a whole.”

This representation gap explains why Republican officials are pushing new voting restrictions like voter ID laws and cuts to early voting, which disproportionately impact minority voters and seek to make the electorate smaller and whiter. A victory for Blum’s side in Evenwel would make districts across the country even less representative of the country as a whole.

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Blum claims to be fighting for race neutrality but he’s often done the bidding of the most powerful figures in the conservative movement and Republican Party. As I reported in 2013:

His Project on Fair Representation is exclusively funded by Donors Trust, a consortium of conservative funders that might be the most influential organization you’ve never heard of. Donors Trust doled out $22 million to a Who’s Who of influential conservative groups in 2010, including the American Legislative Exchange Council (ALEC), which drafted mock voter ID laws and a raft of controversial state-based legislation; the Americans for Prosperity Foundation, the Koch brothers’ main public policy arm…Donors Trust has received seven-figure donations from virtually every top conservative donor, including $5.2 million since 2005 from Charles Koch’s Knowledge and Progress Fund. (The structure of Donors Trust allows wealthy conservative donors like Koch to disguise much of their giving.)

From 2006 to 2011, Blum received $1.2 million from Donors Trust, which allowed him to retain the services of Wiley Rein, the firm that unsuccessfully defended Ohio’s and Florida’s attempts to restrict early voting in federal court last year. As a “special program fund” of the tax-exempt Donors Trust, Blum’s group does not have to disclose which funders of Donors Trust are giving him money, but he has identified two of them: the Bradley Foundation and the Searle Freedom Trust. The Wisconsin-based Bradley Foundation paid for billboards in minority communities in Milwaukee during the 2010 election with the ominous message “Voter Fraud Is a Felony!”, which voting rights groups denounced as voter suppression. Both Bradley and Searle have given six-figure donations to ALEC in recent years, and Bradley funded a think tank in Wisconsin, the MacIver Institute, that hyped discredited claims of voter fraud to justify the state’s voter ID law.

The challenge in Evenwel isn’t so different from the gutting of the VRA or new laws restricting voting rights. The goal is to limit representation, make it harder for some to participate in the political process and to widen the gap between the haves and have-nots.

CORRECTION: Blum says, "The Project on Fair Representation hasn't been affiliated with Donors Trust for nearly 6 months; we are now a 501 (c) (3) so our donors will be disclosed according to the regulations that apply to all public charities."

Read Next: Ari Berman on how the money primary is undermining voting rights

Help Baltimore by Restoring Voting Rights to Ex-Felons

(AP Photo/Damian Dovarganes)

Freddie Gray’s neighborhood in Baltimore had the highest incarceration rate of anywhere in the city. More than 450 adults from Sandtown-Winchester are in state prison, and one in four juveniles were arrested from 2005 to 2009. These statistics are indicative of a broader crisis in the city—a third of Maryland’s prison population is from Baltimore.

The problem of mass incarceration has been all over the news recently. One overlooked aspect of the story is how the legacy of mass incarceration denies equal citizenship long after the offenders have paid their debts to society. Nationally, 1 in 13 African-Americans—2.2 million people—are prohibited from casting a ballot because of felon disenfranchisement laws.

Earlier this month the Maryland legislature passed a bill automatically restoring voting rights for ex-felons, allowing them to vote while on parole or probation. The legislation would restore voting rights to nearly 40,000 people and be particularly beneficial to African-Americans, who make up 30 percent of the state’s population but account for 65 percent of those denied voting rights. The bill awaits the signature of Maryland Republican Governor Larry Hogan, who has said “I believe in second chances.”

[Image courtesy of Color of Change]

The Baltimore Sun explained the legislation and editorialized in its favor:

At present, people who have lost their right to vote as a result of a criminal conviction don’t automatically get it back when they return to their communities. In Maryland, ex-offenders can’t register to vote until they have fulfilled all the terms of their sentences, including any period of probation or parole after their release. That can add years to the time they must wait before their voting rights are fully restored.

The measure would instruct the state Department of Public Safety and Correctional Services to notify ex-offenders upon their release from prison that their voting rights will be restored and to give them a voter registration form along with another document offering them an opportunity to register and help filling out the form. It would also require the department to provide similar notifications to people discharged from prison before the bill’s effective date of Oct. 1, 2015 and allow prisoners who are still incarcerated to participate in educational programs informing them of their rights under the law before their release.

Fifteen to 20 states have adopted similar measures, as part of a nationwide rethink of our country’s broken criminal justice system. As the Sun notes, the legislation wouldn’t solve the myriad problems in Baltimore, but it would be a good first step.

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“The ability to vote is a key factor in helping people reintegrate back into their communities after returning from prison,” Ben Jealous and Janet Vestal Kelly wrote recently. “The right to vote offers a sense of ownership to our democracy—a reminder that each of us holds the key to our own futures through the democratic process.”


Read Next: Ari Berman on the debate over Texas’ strict voter ID law

Will the Courts Finally Block Texas’ Worst-in-the-Nation Voter-ID Law?

An election official checks a voter's photo ID at an early voting polling site in Texas on February 26, 2014. (AP Photo/Eric Gay, File)

The 2014 election in Texas illuminated the burdens of voter-ID laws. Because of the law—the strictest in the country—many longtime voters were turned away from the polls and unable to vote.

The Texas voter ID law is once again before a court on Tuesday, when the US Court of Appeals for the Fifth Circuit will consider whether to uphold a lower-court decision striking down the law as an “unconstitutional poll tax.”

The debate over voter ID in Texas is like a bad movie that never ends. A federal district court first blocked the law in 2012, a decision that stood until the Supreme Court gutted the Voting Rights Act a year later, freeing states like Texas from having to approve their voting changes with the federal government.

Following a lengthy trial, the law was struck down for a second time in October 2014 by Judge Nelva Gonzales Ramos of the Southern District of Texas, who found that 608,470 registered voters in Texas lacked the required voter ID, with blacks and Hispanics two to three times more likely than whites not to have one. She found that the Texas legislature passed the measure “because of and not merely in spite of the voter ID law’s detrimental effects on the African-American and Hispanic electorate.” Ramos’s ruling had significance far beyond Texas—her finding that the law was purposefully discriminatory meant that the state could once again have to clear its voting changes with the federal government.

That decision stood for only five days before the conservative Fifth Circuit reinstated the law for the 2014 election, faulting Ramos for blocking it so close to the election. The Supreme Court affirmed the appeals-court decision three weeks before the election—the first since 1982 that the Court had declined to block a voting measure deemed intentionally discriminatory by a trial court.

The Brennan Center for Justice has been compiling the stories of dozens of Texas voters who were prevented from casting ballots in 2014 because of the voter ID law. (See here and here and here).

They are heartbreaking to read and often border on the absurd.

Daniel Menchaca, 61, lives in El Paso and has worked at a federal agency office in Texas for the last 31 years. He participates in elections regularly, and has been voting at his precinct in a local fire station for many years. This time, when he went to the polls, he was not allowed to cast a regular ballot on Election Day because he did not have his Texas driver’s license with him.

He did have multiple forms of identification at the polls. In addition to his voter registration card, Mr. Menchaca had a government-issued photo identification card: his federal civilian-worker identification from his job at a federal agency. This ID has his picture and an expiration date, he needed to undergo thorough background checks to receive it, and he uses it to get on a military base—which includes a missile range—for his job. Despite both of these forms of identification, however, he was forced to vote provisionally. When he showed his ID, the poll worker told him that “a lot of federal workers are foreigners.”

Mr. Menchaca was instead forced to vote a provisional ballot. However, he was not able to provide the additional documentation needed to make it count in time—in part because the process for doing so was not explained to him. “They made it sound like I just had to fill it out and put it in the box and it would count,” he said. Ultimately, despite showing up at the polls with multiple forms of identification, his vote did not count.

“I always keep that ID clipped to my shirt, and the military police check it, and look at my face, and verify that I’m on the list, before I can get on the base. My ID is good enough to get on a military base, but it’s not good enough to vote?”

Such stories were far too typical in 2014.

Della Lewis is 89 and lives in Montgomery. She has been voting since she was 30 years old, and has never had any problems—until 2014. “They always sent me my card and I always voted,” she said. But she couldn’t vote last November because she did not have an up-to-date photo ID. She no longer drives, so her driver’s license is expired. Even with her voter registration card, she was not allowed to vote.

She voted a provisional ballot, but she was not able to get it counted. She could not get to a Department of Public Safety (DPS) office with the documentation she needed in time to have her vote counted. She does not have access to a birth certificate, because she was delivered by a midwife, and she was not able to get the other documentation she would have needed to get a new ID in time.

“They know I’m Della Mae,” she said. “If they weren’t going to count my vote, why do they keep sending me a voting card?”

Dorothy Rains-White is 87 and lives in Huntsville. She has lived in Texas all her life. She needs a cane or a walker to get around. When she went to vote with her husband, Willis White, she was unable to cast a regular ballot because they would not accept her expired driver’s license (she no longer drives).

Getting the provisional ballot counted proved impossible. The last time they tried to get her a driver’s license, according to Mr. White, there was a “big ol’ form” for her to fill out and a whole set of documents required. Mr. White said the DPS did not tell them anything about the possibility of getting a free ID card—and instead said they would have to pay a fee to get a new ID.

Mr. White also observed that trips to the DPS can be difficult. There is no place for older people to sit down while they wait. Mr. White saw a pregnant woman who waited three hours and still was not able to get an ID—she was in tears.

Mrs. Rains-White was upset by the experience. She said “I have been living in the state of Texas all of my life and I felt like I had been cheated out of the privilege of voting.”

Those who believe that voter-ID laws are not preventing people from voting need only look at Texas for a strong rebuttal. Over 600,000 registered voters lack a voter ID, but the state issued only 407 IDs as of Election Day 2014. (You can vote with a gun permit in Texas, but not a student ID.) The state official in charge of distributing voter IDs told his coworkers that “zero is a good number” of requests. Even with a high-profile governor’s race in 2014 between Greg Abbott and Wendy Davis and a record number of registered voters, Texas had the second-lowest voter turnout rate in the country in 2014, with 300,000 fewer ballots cast than in 2010.

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The three-judge panel hearing the voter ID appeal on Tuesday includes an Obama and Clinton appointee, increasing the chances that the law will be struck down. But any decision can be appealed to the full Fifth Circuit, which is dominated by conservative Bush and Reagan appointees. Whatever the Fifth Circuit decides, the case is likely headed to the Supreme Court.

When it stuck down Section 4 of the Voting Rights Act in June 2013, the Court’s majority claimed the remaining provisions of the VRA would sufficiently protect voters from discriminatory voter suppression efforts. Texas will provide the ultimate test of whether that’s true.

Read Next: Ari Berman on Darryl Pinckney’s new book, Blackballed: The Black Vote and US Democracy

A Rare Victory for Black Voting Rights in the South

Representatives from the NAACP standing outside the Supreme Court in Washington awaiting a decision in Shelby County v. Holder on June 25, 2013. (AP Photo/J. Scott Applewhite, File)

In 2010, Republicans gained control of the Alabama legislature for the first time in 136 years. The redistricting maps drawn by Republicans following the 2010 election preserved the thirty-five majority-minority districts in the Alabama legislature—represented overwhelmingly by black Democrats—and in some cases actually increased the number of minority voters in those districts.

For example, State Senator Quinton Ross, a black Democrat elected in 2002, represented a district in Montgomery that was 72 percent African-American before the redistricting process. His district was under-populated by 16,000 people, so the Alabama legislature moved 14,806 African-Americans and thirty-six whites into his seat. The new district was now over 75 percent black and excluded white neighborhoods that were previously in Ross’s district.

Republicans claimed they were merely complying with the Voting Rights Act. Black Democrats challenged the redistricting maps as an unconstitutional racial gerrymander and took the case to the Supreme Court. Today the Court, in a 5-4 decision written by Justice Breyer, sided with the black plaintiffs and ordered a district court in Alabama to reexamine whether specific districts, like Ross’s, were improperly drawn with race as the predominant factor. The decision was released, interestingly enough, on the same day as the fiftieth anniversary of the march from Selma to Montgomery.

“The record indicates that plaintiffs’ evidence and arguments embody the claim that individual majority-minority districts were racially gerrymandered, and those are the districts that the District Court must reconsider,” Breyer wrote. Section 5 of the Voting Rights Act (which the Supreme Court gutted in 2013, in another case from Alabama) did not compel the legislature to preserve the exact number of minority voters in a given district or inflate those numbers. “Section 5 does not require a covered jurisdiction to maintain a particular numerical minority percentage. It requires the jurisdiction to maintain a minority’s ability to elect a preferred candidate of choice,” Breyer said. The court’s majority—joined by Justice Kennedy—sympathized with the plaintiffs’ claim that Alabama’s interpretation of the VRA may “harm the very minority voters that Acts such as the Voting Rights Act sought to help.”

Justices Scalia and Thomas dissented. “We have somehow arrived at a place where the parties agree that Alabama’s legislative districts should be fine-tuned to achieve some ‘optimal’ result with respect to black voting power; the only disagreement is about what percentage of blacks should be placed in those optimized districts. This is nothing more than a fight over the ‘best’ racial quota,” wrote Thomas.

The ruling could have important ramifications, since the strategy followed by Alabama Republicans—packing minority voters into heavily Democratic seats in order to weaken white Democrats—was replicated throughout the South after the 2010 elections. I wrote about this trend in a 2012 feature for The Nation, “How the GOP Is Resegregating the South”:

In virtually every state in the South, at the Congressional and state level, Republicans—to protect and expand their gains in 2010—have increased the number of minority voters in majority-minority districts represented overwhelmingly by black Democrats while diluting the minority vote in swing or crossover districts held by white Democrats. “What’s uniform across the South is that Republicans are using race as a central basis in drawing districts for partisan advantage,” says Anita Earls, a prominent civil rights lawyer and executive director of the Durham-based Southern Coalition for Social Justice. “The bigger picture is to ultimately make the Democratic Party in the South be represented only by people of color.”

White Democrats have become the biggest casualty of the GOP’s new Southern strategy. As Jason Zengerle wrote in The New Republic, “Prior to the 2010 election, the Alabama House had sixty Democratic members, 34 of them white and 26 black. Afterward, there were 36 Democrats—ten white, 26 black. Meanwhile, in the Alabama Senate, the number of black Democrats remained seven, while the number of white Democrats fell from 13 to four.” After the 2014 election, there are now only seven white Democrats in the Alabama legislature—one in the Senate and six in the House.

There are no longer any white Democrats from the Deep South in Congress, following the defeat of Georgia Congressman John Barrow in 2014. Georgia Republicans moved 41,000 black Democrats out of his Savannah-based district to make him more vulnerable to a Republican challenge.

The elimination of white Democrats has also crippled the political aspirations of black Democrats. For years, black Democrats served in the majority with white Democrats in state legislatures across the South. Today Republicans control every legislative body in the South except for the Kentucky House. Before the 1994 elections, 99.5 percent of black Democrats served in the majority in Southern state legislatures. After the 2010 election, that number dropped to 4.8 percent, according to the Joint Center for Political and Economic Studies. “Black voters and elected officials have less influence now than at any time since the civil rights era,” the report found.

In the 1990s, some black Democrats formed an “unholy alliance” with white Republicans to create new majority-minority districts in the South. Republicans supported these districts for black Democrats in select urban and rural areas in exchange for an increased GOP presence elsewhere, especially in fast-growing metropolitan suburbs. With Democrats grouped in fewer areas, Republicans found it easier to target white Democrats for extinction.

But that unholy alliance ended after 2010, when black Democrats across the South, like Georgia Senate minority leader Stacey Abrams, denounced the GOP’s redistricting strategy. They found it especially ironic that Republicans were using the VRA as a rationale for marginalizing black voters while at the same time pushing the Supreme Court to gut the most important part of the VRA—the requirement that states with the worst history of voting discrimination, like Alabama, clear their voting changes with the federal government.

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Even though Southern states like Alabama no longer have to have their redistricting maps approved by the federal government, the Court’s decision today could open the door for additional challenges to GOP-drawn racial gerrymanders in states like Virginia and North Carolina. “Today’s Alabama decision gives these challengers a new tool, making it harder for states to use compliance with the Voting Rights Act as a pretext to secure partisan advantage,” writes Rick Hasen.

It’s a modest victory, but perhaps the best that can be expected from the current Supreme Court.


Read Next: Ari Berman on whether the Supreme Court should have accepted a challenge to Wisconsin’s voter-ID law.

Should the Supreme Court Have Accepted a Challenge to Wisconsin’s Voter ID Law?

Voters wait in line to cast their ballot Tuesday, June 5, 2012, in Milwaukee. (AP Photo/Jeffrey Phelps)

Ruthelle Frank, an 87-year-old resident of Brokaw, Wisconsin, has voted in every presidential election since 1948. But after the passage of Wisconsin’s voter-ID law in 2011, she became one of 300,000 registered voters in the state without the required ID. Frank was paralyzed on the left side of her body at birth and doesn’t have a driver’s license or birth certificate. Her name is misspelled in Wisconsin’s Register of Deeds, an error that would cost hundreds of dollars to correct.

These circumstances led Frank to become the lead plaintiff in a challenge to Wisconsin’s voter-ID law. That law was blocked in state and federal court for the 2012 election and struck down in May 2014 following a full trial, only to be reinstated by a panel of Republican judges on the US Court of Appeals for the Seventh Circuit less than two months before the 2014 election. The Supreme Court prevented the law from taking effect for the 2014 election, but only on a temporary basis. After the election, voting rights advocates asked the high court to consider the full merits of the case. Today, the Supreme Court declined to hear the appeal. As a result, Wisconsin’s voter-ID law—among the most restrictive in the country—will be allowed to go into effect.

In 2008, the Supreme Court upheld Indiana’s voter-ID law in Crawford v. Marion County. The Wisconsin case presented an opportunity for the Court to reconsider the issue. At the time of the Crawford decision, only two states—Indiana and Georgia—had passed voter ID laws and little was known about their impact. Since Crawford, seventeen states have passed voter ID laws—nine of them requiring strict forms of government-issued ID, like in Wisconsin—and much more is known about the burdens of such laws.

[Source: Government Accountability Office]

There is compelling evidence that the Wisconsin law is significantly more burdensome than the voter ID law approved in Indiana.

1. Wisconsin’s law is more notably restrictive than Indiana’s.

According to Judge Richard Posner of the Seventh Circuit:

The Indiana statute challenged in Crawford was less restrictive than the Wisconsin statute challenged in this case. Indiana accepts any Indiana or U.S. government-issued ID that includes name, photo, and expiration date. Wisconsin’s statute permits voters to use only a Wisconsin drivers’ license or Wisconsin state card, a military or tribal ID card, a passport, a naturalization certificate if issued within two years, a student ID (so long as it contains the student’s signature, the card’s expiration date, and proof that the student really is enrolled in a school), or an unexpired receipt from a drivers’ license/ID application. Wisconsin does not recognize military veterans IDs, student ID cards without a signature, and other government-issued IDs that satisfy Indiana’s criteria.

Voters 65 and over can vote absentee in Indiana without showing a government-issued ID and can use their Medicare, Medicaid or Social Security cards to obtain a driver’s license instead of a birth certificate—neither of which is true in Wisconsin.

Three hundred thousand registered voters in Wisconsin, nearly 10 percent of the electorate, lack a valid voter ID, compared to only 43,000 in Indiana, less than 1 percent of the electorate.

This matters a lot, since new states passing voter-ID laws, like Texas and North Carolina, claim they are following the Indiana template upheld by the Supreme Court, when in reality they are adopting laws that are far more restrictive.

2. Voter ID is much more difficult to obtain in Wisconsin than Indiana.

From an amicus brief filed by the One Wisconsin Institute:

Although Wisconsin has 50 percent more square mileage than Indiana, Indiana has 140 BMV [Bureau of Motor Vehicle] service centers, compared to Wisconsin’s 92. In addition, whereas Wisconsin has only 33 full-time locations, nearly all of Indiana’s 140 BMVs are open five days a week. Indiana also has 124 BMVs open on the weekends. Wisconsin has three.

The state is not exactly making it easy for voters to comply with the new law.

3. The debate over voter ID laws has shifted significantly since the Crawford decision.

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 impersonation to justify the law. Seven 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.

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 in 2013. “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.

The same is true for Judge Posner, who wrote the opinion upholding Indiana’s voter ID law in the Seventh Circuit but published a scathing critique of Wisconsin’s voter ID law last year. “There is evidence both that voter impersonation fraud is extremely rare and that photo ID requirements for voting, especially of the strict variety found in Wisconsin, are likely to discourage voting,” Posner wrote. “This implies that the net effect of such requirements is to impede voting by people easily discouraged from voting, most of whom probably lean Democratic.”

Posner concluded that claims of voter impersonation fraud were “a mere fig leaf for efforts to disenfranchise voters likely to vote for the political party that does not control the state government.”

Judge Lynn Adelman of the US district court in Wisconsin reached the same conclusion. “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.”

4. Wisconsin’s law violates the Voting Rights Act.

Indiana’s law was not a case about voting discrimination. But in Wisconsin, Adelman found that “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.”

Would these facts have convinced the Roberts Court to strike down Wisconsin’s voter ID law? Maybe. Or maybe not. This is the same Court that gutted the Voting Rights Act two years ago, despite widespread evidence of contemporary voting discrimination. Chief Justice John Roberts and his conservative colleagues could have used the Wisconsin case as an opportunity to offer a blanket endorsement for all voter ID laws, something that Stevens did not do in Crawford, setting a chilling precedent for voting rights for decades.

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That’s why many voting rights advocates were agnostic about this case and felt more comfortable with the Court’s eventually hearing a challenge to voter-ID laws from a state like Texas, where a trial court found the law was enacted with intentional discrimination. It may also explain why the liberal justices on the Court did not vote as a bloc for the Wisconsin case to be heard.

At the same time, the Court’s decision not to hear the case means that one of the most restrictive laws in the country, in a crucial swing state, will now stand, and the broader constitutionality of voter ID laws will not be resolved before the 2016 election.

When it comes to the current Supreme Court and voting rights, the options range from bad to worse.

Read Next: Ari Berman on how we should honor Selma by protecting voter rights

Honor Selma by Protecting Voting Rights

50th anniversary of Bloody Sunday

Members of Congress mark the fiftieth anniversary of Bloody Sunday. (All photos by Ari Berman)

This weekend marked the fifteenth year that John Lewis has led a bipartisan congressional delegation on a civil-rights pilgrimage to Alabama, under the auspices of the Faith and Politics Institute. This year 100 members of Congress joined him, the largest delegation in the pilgrimage’s history. I was lucky enough to tag along.

They visited 16th Street Baptist Church in Birmingham, where four young girls were killed in a 1963 bombing, and heard Lewis give a riveting account of being imprisoned and beaten during the Freedom Rides in 1961, when he was only 21. They visited the Rosa Parks museum in Montgomery and celebrated the Voting Rights Act (VRA) on the steps of the Alabama capitol. And, of course, they visited Selma to mark the fiftieth anniversary of Bloody Sunday, where they met the foot soldiers of the voting-rights movement and listened to President Obama celebrate the most important march in civil-rights history.

Obama spoke at the foot of the bridge where his hero, John Lewis, nearly died fifty years earlier. The president linked the struggle for the right to vote in March 1965 to the fight for voting rights today.

From 2011 to 2015, 395 new voting restrictions have been introduced in forty-nine states, with half the states in the country passing laws making it harder to vote. In 2013, the Supreme Court gutted the centerpiece of VRA—nullifying the requirement that states with the worst histories of voting discrimination clear their voting changes with the federal government.

Obama denounced this disturbing trend:

Right now, in 2015, 50 years after Selma, there are laws across this country designed to make it harder for people to vote. As we speak, more of such laws are being proposed. Meanwhile, the Voting Rights Act, the culmination of so much blood, so much sweat and tears, the product of so much sacrifice in the face of wanton violence, the Voting Rights Act stands weakened, its future subject to political rancor.

How can that be? The Voting Rights Act was one of the crowning achievements of our democracy, the result of Republican and Democratic efforts. (Applause.) President Reagan signed its renewal when he was in office. President George W. Bush signed its renewal when he was in office. (Applause.) One hundred members of Congress have come here today to honor people who were willing to die for the right to protect it. If we want to honor this day, let that hundred go back to Washington and gather four hundred more, and together, pledge to make it their mission to restore that law this year. That’s how we honor those on this bridge. (Applause.)

President Obama speaks at the Edmund Pettus Bridge in Selma.

President Bush—who signed the last reauthorization of the VRA in 2006—stood and cheered Obama’s remarks. Lewis, who sat a few feet away, called the Supreme Court’s decision in Shelby County v. Holder “a dagger into the heart of the Voting Rights Act” and is a lead sponsor of the Voting Rights Amendment Act of 2014 (VRAA), which partially restores Section 4 of the VRA—the formula determining which states have to clear voting changes with the federal government—based on recent voting rights violations.

John Lewis tells the story of Bloody Sunday on the Edmund Pettus Bridge.

Even though Congress overwhelmingly reauthorized the VRA on four occasions (1970, 1975, 1982, 2006), few Republicans have heeded Lewis’s call. Last week, Congress unanimously passed a bill honoring the foot soldiers of the Selma movement, but the VRAA has only eleven GOP sponsors in the House and none in the Senate. Of the 23 Republican members of Congress who traveled to Selma, none were current sponsors of the VRAA. There are eighty-two members of Congress who voted for the VRA in 2006 but have not sponsored the VRAA.

Did Obama’s speech, Lewis’s pilgrimage and the fiftieth anniversary of Bloody Sunday change that dynamic? Maybe.

“It’s a clarion call to Congress that we need to address it and address it now,” said Representative Marcia Fudge (D-OH), the former chair of the Congressional Black Caucus.

“This is a moment of hope, a reminder that people can make change,” said Senator Elizabeth Warren (D-MA), after her first visit to Selma. “But it’s also a moment of shame, because fifty years after Selma the Voting Rights Act has been gutted and this Congress will not even bring itself to vote on a stronger law.”

Senator Elizabeth Warren in Selma

She said it was hypocritical for lawmakers to visit Selma and not sign on to legislation strengthening the VRA. “I just want some accountability. I want to know that everyone who showed up here today to have their picture taken on the bridge next to the heroes of the civil-rights movement is ready to support a new Voting Rights Act. Every one of them.”

A number of Republicans I interviewed expressed a newfound openness on the issue after spending time in Alabama with Lewis.

Representative Tom Reed (R-NY) from upstate New York said he would sponsor the VRAA when he returned. “Events like today, the fiftieth anniversary—such a pivotal moment in our nation’s history—could be a springboard to getting it completed,” he said.

Senator Susan Collins (R-ME), who voted for the VRA in 2006, said she was struck by Lewis’s statement that in Lowndes County, which adjoins Selma, there were no African-Americans registered to vote in March 1965. “I knew there were barriers, but I did not fully understand how onerous and high those barriers were,” Collins said.

She said she would consider sponsoring the VRAA. “I need to look more closely at the Supreme Court’s decision and I will at the end of this trip. I’m more sensitive that barriers can dissuade people from voting.”

Collins had not discussed the issue with the bill’s lead sponsor in the Senate, Vermont Senator Patrick Leahy, who has been trying for months to find a Republican co-sponsor. Senator Rob Portman (R-OH) told me the same thing. “I’m not on the [Judiciary] Committee or that engaged with it,” Portman said. “I will now learn more about it when I get back…Because of this trip, I will be more interested.”

Senator Tim Scott (R-SC)—a co-chair of the pilgrimage and the first black senator from the South since Reconstruction—said he supported the Shelby decision, but also praised Congressman Jim Sensenbrenner’s efforts to find GOP support for the VRAA in the House. “He’s working it the right direction,” Scott said. “I have not studied the proposal. To eliminate an outdated formula in order to ensure that everyone has the access to vote, I’m open to that discussion.” After Obama’s speech, Scott tweeted: "Access to the ballot for all Americans must be protected. Will be conversations on #VRA as we continue to discuss path forward."

The Alabama Republican delegation was less amenable to fixing the VRA. Representative Martha Roby, a co-chair of the trip, said she was not supporting the VRAA. “If Congress is going to take up any changes, it needs to be done with fairness, not just apply to Alabama, but all across this great country.” Her Senate counterpart, Jeff Sessions, told Politico: “I don’t think that the Supreme Court ruling has damaged voting rights in any real way.”

House Minority Whip Steny Hoyer told me he had discussed the issue extensively with Eric Cantor in the last Congress, but hasn’t talked about it with the current House GOP leadership. “I expect to have conversations in the near future,” he said.

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No member of the Republican leadership was planning to visit Selma until House Majority Leader Kevin McCarthy changed his plans at the eleventh hour. According to Politico, McCarthy “said he didn’t see acting on the VRA as the right way to move forward from Selma.”

The VRA has always had strong bipartisan support. The four reauthorizations were signed by Republican presidents and supported by a majority of Republicans. Conservative outlets like National Review admonished the GOP for lightly attending the Selma anniversary.

“As it would be unthinkable for the leadership of the Republican party to ignore July Fourth, it should be unthinkable for its luminaries not to celebrate the anniversary of the March to Montgomery either,” wrote National Review’s Charles Cooke.

“Obviously, I wish more would have considered and made the commitment to come, because it is such an important issue in American history,” said Representative Tom Reed from New York. “I’ll share my personal experience and what impact it had.”

If this trip couldn’t persuade people to embrace the cause of voting rights, what could, asked Representative John Conyers (D-MI), who’s sponsoring the VRAA with Sensenbrenner in the House. “If we don’t [do it now], I don’t know what else we can do.”

Before hearing from the president and walking across the Edmund Pettus Bridge, members of Congress visited Brown Chapel—the headquarters of the Selma movement in 1965—where they heard from foot soldiers like Sheyann Webb, who at 8 was the youngest marcher on Bloody Sunday, and Fred Gray, the crusading lawyer for Rosa Parks and Martin Luther King.

Gray urged the Congress not to forget about the blood shed in Selma and why it matters today.

“We are losing the battle for civil rights now,” he warned bluntly. “I hope this will motivate you to go back and not just do the same thing.”

Mary Liuzzo recounted the story of her mother, Viola, a Detroit housewife who traveled to Selma after watching the footage of Bloody Sunday. She was killed by Klansmen after the march from Selma to Montgomery. “My question is: Why didn’t everyone come to Selma?” Liuzzo said. One could ask the same question today.


Read Next: Ari Berman on the nationwide assault on voting rights

50 Years After Bloody Sunday, Voting Rights Are Under Attack

States with restrictive voting legislation

(Image: Brennan Center for Justice)

Tens of thousands of people—including President Obama—will travel to Selma this weekend to commemorate the fiftieth anniversary of “Bloody Sunday,” the infamous march that led to the passage of the Voting Rights Act.

The progress since then has been remarkable. Because of the VRA, the number of black, Hispanic and Asian officeholders has skyrocketed from under 1,000 in 1965 to over 17,000 today. “African-Americans went from holding fewer than 1,000 elected offices nationwide to over 10,000,” according to a new report from the Joint Center for Political and Economic Studies, “Latinos from a small number of offices to over 6,000, and Asian Americans from under a hundred documented cases to almost 1,000.” In Alabama, the birthplace of the VRA, the number of black elected officials has increased from eighty-six in 1970 to 757 today.

(Image: Brennan Center for Justice)

Despite these dramatic improvements, the right to vote is currently under the most sustained attack since the passage of the VRA.

In 2011 and 2012, 180 new voting restrictions were introduced in forty-one states, with new laws adopted in nineteen states that made it harder to vote, according to the Brennan Center for Justice. Many of these laws were blocked in court in 2012, but a year later the Supreme Court gutted the VRA, dealing a devastating blow to voting rights. As a result, twenty-one states had new restrictions in place in 2014.

(Image: Brennan Center for Justice)

The attack on voting rights has spread to virtually every state in the country. From 2011 to 2015, 395 new voting restrictions have been introduced in forty-nine states (Idaho is the lone exception). Half the states in the country have adopted measures making it harder to vote. (Scroll to the bottom for a list of the states.)

Thanks to the Supreme Court’s Shelby County v. Holder decision, states with the worst histories of voting discrimination, like Alabama, no longer have to approve their voting changes with the federal government. The Southern states that were previously subject to “precelarence” have been particularly aggressive in curbing voting rights.

(Image: Leadership Conference on Civil Rights)

Alabama, Mississippi, South Carolina, North Carolina, Texas and Virginia have passed strict voter ID laws. Longtime voters have been turned away from the polls, such as a 92-year-old great-grandmother in Alabama who could not vote with her public housing ID or a 93-year-old Virginia woman who had been voting for seventy-two years but could not vote with an expired driver’s license.

Texas’s voter ID law, the strictest in the country, was blocked in 2012 under the VRA. But immediately after the Shelby decision, Texas officials announced it would go into effect. The law was blocked again in 2014 as an “unconstitutional poll tax,” but the US Court of Appeals for the Fifth Circuit overruled the court’s decision and approved the law for 2014, which the Supreme Court affirmed.

A month after Shelby, North Carolina passed the most sweeping voting restrictions in the country—requiring strict voter ID, cutting early voting, ending same-day registration and curtailing virtually every reform that made it easier to vote. A preliminary injunction against key provisions of the law was rejected by the courts.

As North Carolina shows, the restrictions go well beyond voter ID. Alabama required proof of citizenship for voter registration. Florida cut early voting, shut down voter registration drives and disenfranchised ex-felons. Georgia drastically reduced the number of early voting days and is poised to cut it again. Local jurisdictions like Augusta, Georgia, and Pasadena, Texas, have changed their election structures to make it harder for minority candidates to be elected.

This trend is getting worse in 2015. In the first few weeks of this year, forty new voting restrictions were introduced in seventeen states. That number will grow as state legislatures consider proposed legislation. Nevada, New Mexico and Missouri are among the states moving to pass voter-ID laws. “It’s surprising and remarkable that in 2015 we’re fighting over the same thing we fought over 50 years ago—the right to vote,” says Wendy Weiser of the Brennan Center.

(Image: Brennan Center for Justice)

What can be done to combat the attack on voting rights? I suggested a few ideas in “How to Protect the Vote,” from aggressively enforcing the remaining provisions of the VRA to passing electoral reform to ratifying a constitutional amendment guaranteeing the right to vote.

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The best starting point would be for Congress to revise and restore Section 4 of the VRA, the formula determining which states have to approve voting changes with the federal government. The Voting Rights Amendment Act of 2014 would place the worst actors under federal supervision and serve as a deterrent to other states toying with voting discrimination.

The legislation has bipartisan support in the House but has thus far gone nowhere, even though Congress recently unanimously passed a resolution awarding the Congressional Gold Medal to the Selma marchers and 100 members of Congress will visit Selma on a civil rights pilgrimage led by John Lewis.

The Selma anniversary offers lawmakers a prime opportunity to move from symbolism to substance. Congresswoman Terri Sewell of Selma recently told me: “My hope is that the bipartisan efforts we’ve made will move people to recommit themselves to restore the teeth back into the Voting Rights Act. Gold medals are great—I think it’s long overdue and much deserved that the foot soldiers are going to finally get their place in history, but the biggest tribute that we can give to those foot soldiers is fully restoring the Voting Rights Act.”

Ed note: The states that have passed new voting restrictions since 2011 are Alabama, Florida, Georgia, Illinois, Iowa, Kansas, Maine, Mississippi, New Hampshire, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Virginia, West Virginia, Wisconsin (2011-2012); and Arkansas, Indiana, Montana, Nebraska, North Carolina, North Dakota (2013). See here and here for more details. 

Read Next: Ari Berman on civil rights in Selma, fifty years later

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