On American politics and policy.
On February 18, 1965, James Orange, an organizer with Martin Luther King’s Southern Christian Leadership Conference, was arrested in Marion, Alabama, thirty miles from Selma, after leading young people in a voter registration drive. Word spread through the black community that Orange would be lynched that night in the county jail off the town’s main square.
Two hundred civil rights activists gathered at Zion United Methodist Church to hold a rare night march to the jail, where they would sing freedom songs outside. The congregation included 26-year-old Jimmie Lee Jackson, a deacon and woodcutter who had tried to register to vote five times in Perry County, where only 265 of 5,202 eligible black voters were on the voting rolls.
When the marchers stepped outside, hundreds of policemen and state troopers in riot gear surrounded the church. They brutally beat the civil-rights activists and attacked the reporters who were covering the demonstration. As a result, there is no photographic or video record of the tragic events that night.
Jackson, his mother Viola, and his 82-year-old grandfather, Cager Lee, fled for safety at nearby Mack’s Café. State troopers stormed in and began beating Jackson’s grandfather and mother. When Jackson lunged to protect his mother, an Alabama state trooper shot him point-blank in the stomach. He was sent to Selma’s segregated Good Samaritan Hospital, where Col. Al Lingo of the Alabama Department of Public Safety served him with a warrant for assault and battery with the intent to murder an Alabama state trooper, even though the police had been the clear aggressors. Jackson died eight days later. Historian Taylor Branch called him “the first martyr” of the Selma voting rights struggle.
Hugh Stewart, a veteran of “Bloody Sunday,” remembers Jimmie Lee Jackson in Marion, Alabama.
At a mass meeting at Selma’s Brown Chapel, King aide James Bevel introduced the idea of marching from Selma to Montgomery to protest Jackson’s death. That march became “Bloody Sunday,” which led to the Voting Rights Act (VRA) eight months later. Jackson’s grandfather Cager Lee, the son of a slave, marched next to John Lewis from Selma to Montgomery, and registered and voted for the first time after the passage of the VRA.
It took far longer for justice to be served to Jackson’s killer, as the New York Daily News reported:
The state police corporal who shot him, James Bonard Fowler, escaped indictment by an all-white Perry County grand jury in the fall of 1965. In 1966, he shot and killed another black man during a scuffle in a local jail near Birmingham, and two years later he was fired from the patrol after severely beating a fellow officer.
The case was reopened when John Fleming of The Anniston Star found Fowler living on a farm in southern Alabama in 2005 and he confessed to the crime. He pled guilty to manslaughter, but received only six months in prison. He was released in 2011.
On February 15, 2015, civil-rights activists gathered at Zion United Methodist Church in Marion to honor Jackson on the fiftieth anniversary of his death. King aide C.T. Vivian, who spoke in Marion on the night of February 18, 1965, attended the ceremony, as did Congresswoman Terri Sewell, Alabama’s first black congresswoman.
Sewell presented Jackson’s sister and niece with a framed copy of remarks she made on the House floor honoring him. “No floor speech, no medal, can bring back Jimmie Lee Jackson,” Sewell told his family. “But please know he didn’t die in vain. I walk the halls of Congress because of his death.”
After the ceremony, hundreds recreated the short march from the church to the boarded-up county jail. Today, there are black officeholders across Perry County and black policemen were on hand to supervise the commemoration march.
More than twenty veterans of Bloody Sunday came from across the country to honor Jackson. Hugh Stewart, who was a 17-year-old high school senior in Marion in 1965, wore blue denim overalls over his suit as a dedication. He marched in Marion fifty years ago and again on Bloody Sunday. By the time he made it from Selma to Montgomery, there was no bottom on his shoes.
Signs in Perry County commemorating the fiftieth anniversary of Bloody Sunday describe Marion as the place “where it all began.”
Read Next: Ari Berman on the movement against North Carolina’s tough voting restrictions.
Last February, tens of thousands of activists with the Moral Monday movement marched to the North Carolina capitol to protest the right-wing takeover of state government. It was the largest civil rights rally in the South since the Selma to Montgomery march in 1965.
This Saturday, there will be another large “Moral March on Raleigh” to kick off a new year of activism and protests—on the birthday of Frederick Douglas, three weeks before the fiftieth anniversary of “Bloody Sunday” in Selma.
“This is our Selma,” says the Rev. William Barber, president of the North Carolina NAACP. “Selma can’t merely be a movie, it must be a movement we engage in now. Everything they won in Selma is now being attacked and North Carolina is the clearest example of that.”
Since taking over state government in 2013, North Carolina Republicans passed the toughest voting restrictions in the country, declined Medicaid expansion for 500,000 North Carolinians, ended unemployment benefits, rescinded the earned income tax credit, cut public education funding and slashed taxes on the wealthy. Barber called the agenda “regressivism on steroids.”
Moral Monday activist have fought the legislature’s policies in the streets, in the courts and at the ballot box over the past two years. Over 1,000 people have been arrested during demonstrations at the legislature. The North Carolina NAACP has held 200 events in fifty-four counties. Young activists registered 5,000 new voters during the “Freedom Summer 2014” campaign. Moral Monday spinoffs have begun in many other states.
But 2014 did not turn out as Moral Monday supporters had hoped. (Barry Yeoman has a great piece in The American Prospect about the coalition’s successes and failures in 2014.)
North Carolina Speaker of the House Thom Tillis, who spearheaded the legislature’s right-wing agenda, narrowly defeated Democrat Kay Hagan in the country’s closest Senate race. Tillis has been widely mocked in recent days for suggesting that Starbucks employees shouldn’t have to wash their hands after using the bathroom.
A preliminary injunction against key provisions of the voting law—ending same-day registration, cutting early voting and prohibiting the counting of ballots cast in the wrong precinct—was denied by a US District Court and the Supreme Court. The new restrictions made it harder for thousands of voters to cast a ballot. There will be a trial on the full merits of the law in July 2015.
North Carolina’s Republican-passed redistricting maps, which resegregated the state politically, were upheld in December by the North Carolina Supreme Court. Partially as a consequence of legislative gerrymandering, Republicans retained large majorities in the legislature after 2014.
The Moral Monday movement will need to deepen and refine its organizing capacity in 2015 if it wants to have greater success in 2016, when Governor Pat McCrory is up for re-election, and North Carolina is sure to be a pivotal battleground state.
Barber calls 2015 “a new year of complete and continuous activism.” He says the North Carolina NAACP will focus on challenging the voting restrictions in court, double down on the need to expand Medicaid, push for a ballot initiative in 2016 to raise the minimum wage, and build local networks in targeted state legislative districts.
In the week leading up to the Moral March, activists are holding daily demonstrations at the legislature, which include fast-food workers mobilizing for a higher minimum wage and healthcare advocates holding a “die-in” to protest the rejection of Medicaid expansion.
“We must march, mobilize, litigate, agitate, legislate, and continue to be focused on these state capitols,” Barber says.
Read Next: Ari Berman on how voting rights are under siege
The film Selma movingly chronicles Martin Luther King Jr.’s fight to win the Voting Rights Act (VRA). It ends with King speaking triumphantly on the steps of the Alabama capitol, after marching from Selma to Montgomery. Five months later, Congress passed the VRA, the most important civil-rights law of the twentieth century.
If only that story had a happy ending today. Selma has been released at a time when voting rights are facing the most sustained attack since 1965. The Supreme Court gutted the centerpiece of the VRA in Shelby County v. Holder in June 2013. That followed a period from 2011 to 2012 when 180 new voting restrictions were introduced in 41 states, and 22 states made it harder to vote.
Last year, on King’s birthday, a bipartisan coalition in Congress introduced a legislative fix for the Shelby decision, restoring the requirement that states with the worst record of voting discrimination have to clear their voting changes with the federal government. The Voting Rights Amendment Act of 2014 (VRAA) was an imperfect piece of legislation, but voting rights advocates viewed it as a good first step toward protecting voting rights.
Despite the overwhelming reauthorization of the VRA in 2006—390-33 in the House, 98-0 in the Senate, signed by President Bush—few Republicans stepped forward to sponsor the VRAA in Congress. There are eleven Republican co-sponsors in the House but none in the Senate, even though every Senate Republican voted for the VRA eight years ago. Congress held a few hearings, but nothing came of it.
This week, House Judiciary Chairman Bob Goodlatte, who voted for the VRA in 2006, reiterated his opposition to strengthening the law. “There are still very, very strong protections in the Voting Rights Act in the area that the Supreme Court ruled on,” Goodlatte said. “To this point we have not seen a process forward that is necessary because we believe the Voting Rights Act provided substantial protection in this area right now.” (Nancy Pelosi said it was “offensive,” especially in the wake of the Steve Scalise scandal, that GOP leaders were not pushing the bill.)
But recent evidence shows that a gutted VRA has provided scant protection to voters. Consider what has happened since the Supreme Court invalidated Section 4 of the VRA in Shelby County:
A month after the Shelby decision, North Carolina passed the most sweeping voting restrictions in the country. Key provisions of the law were upheld by a district court and reaffirmed by the Supreme Court for the 2014 election. As Ruth Bader Ginsburg noted in her dissent, “these measures likely would not have survived federal preclearance.”
Texas’s voter ID law, the strictest in the country, was struck down before the Shelby decision and again in a second trial last year, when a district court called it an “unconstitutional poll tax.” But the law was reinstated by the appeals court and, as in North Carolina, upheld by the Supreme Court. As a result, a law that has twice been struck down as discriminatory remains on the books.
Four major voting rights cases, from Ohio, Wisconsin, North Carolina and Texas, reached the Supreme Court before the 2014 election, and in three of four cases the Supreme Court declined to block the new voting restrictions. The one success story, the Court’s decision to halt Wisconsin’s voter ID law for 2014, was only temporary, and the ACLU has asked the Supreme Court to consider the merits of the law.
Since 2010, nearly two-thirds of the states previously covered under Section 4 have passed new limits on voting rights. Voters in fourteen states faced new restrictions for the first time in 2014. There were many documented cases of longtime voters who were turned away from the polls in states like North Carolina and Texas because of the new laws.
No doubt many in Congress will praise Dr. King during his annual holiday and celebrate the accomplishments of the VRA on its fiftieth anniversary. But those words will ring hollow unless they honor King’s legacy by working to protect voting rights and strengthen the VRA.
The civil-rights movement has been richly chronicled in books like Taylor Branch’s trilogy on Martin Luther King Jr. and documentaries like Eyes on the Prize. But there have been few equally powerful depictions of the movement in pop culture, which tend to overstate the contribution of white protagonists and turn African-Americans into supporting players in their own struggle (i.e., The Help, Mississippi Burning etc).
That’s why the new film Selma is such an important work.
The movie is unique in many respects. It movingly captures the dramatic events that led to the passage of the Voting Rights Act of 1965. It has a great cast, anchored by an unusually nuanced portrayal of King by David Oyelowo. It also boasts a diversity rarely seen in major films, both on screen and behind the camera: as a black woman filmmaker, writer-director Ava DuVernay is, sadly, a rarity in Hollywood. In her hands, Selma skillfully shows the tensions within the civil-rights movement between groups like King’s Southern Christian Leadership Conference and the young activists with the Student Nonviolent Coordinating Committee, and the many pressures—personal, political and organizational—that King faced at the time.
Despite glowing reviews, the film has attracted controversy for its portrayal of Lyndon Johnson. Some of this criticism is the result of an Oscar-season smear campaign and former aides to the president who are over-protective of his legacy. But as an admirer of the film and DuVernay, I must confess that I found the depiction of Johnson to be unnecessarily one-sided, and out of sync with the history I’ve extensively studied in the course of writing a book on the history of voting rights since 1965.
Selma depicts King as a crusader for voting rights and LBJ, in contrast, as a voting rights skeptic. The reality is more complex, and gets to the heart of how the VRA came to be.
One of the first scenes in the film shows King meeting with the president in the Oval Office on December 18, 1964, eight days after King won the Nobel Peace Prize. He urges Johnson to take up voting rights legislation to end the systematic disenfranchisement of African-Americans in the South. “Let’s not start another battle until we’ve won the first,” Johnson tells King in the film, referring to the passage of the Civil Rights Act of 1964. “This voting thing is just going to have to wait.” After the meeting, King tells Andrew Young they’re going to Selma to launch a voting-rights campaign.
In real life, LBJ did tell King something to that effect at that meeting, saying he wanted to focus on Great Society legislation in 1965, and that voting-rights legislation couldn’t pass Congress so soon after the enactment of the Civil Rights Act. “I’m going to do it eventually, but I can’t get voting rights through in this session of Congress,” LBJ told King, according to Nick Kotz’s great book Judgment Days: Lyndon Baines Johnson, Martin Luther King Jr., and the Laws That Changed America.
What Selma doesn’t show is that four days before meeting with King, LBJ told his acting attorney general Nicholas Katzenbach to begin drafting a voting-rights bill. “I basically believe that we can have a simple, effective method of gettin’ ’em registered,” the president said. “Just get me some things you’d be proud of, to show your boy, and say, ‘Here is what your daddy put through in nineteen sixty-four, -five, -six, -seven.’ ” LBJ was a notorious wheeler-dealer who liked to keep his options open, which is why he told King one thing and Katzenbach another. Two weeks later, Katzenbach sent LBJ three options for a voting-rights bill.
On January 15, 1965, after King had arrived in Selma, Johnson called the civil-rights leader on his birthday. “We have got to come up with [voting-rights legislation],” Johnson told him. “That will answer 70 percent of your problems!” He urged King to highlight examples of blacks being denied the right to vote, which was the purpose of King’s campaign in Selma.
While King and civil-rights activists bravely tried to register black voters in Selma, the Civil Rights Division of the Justice Department was busy drafting voting-rights legislation. Two days before the Bloody Sunday march, DOJ lawyers finished a rough draft of a voting-rights bill, giving the federal government extensive power over voter registration in the South.
The violent response to the protests in Selma significantly accelerated the administration’s timetable for pushing voting-rights legislation—LBJ’s aides were previously divided on what the bill should look like, when to introduce it and how aggressively to promote it—and compelled Congress to act swiftly. “The climate of public opinion throughout the nation has so changed because of the Alabama outrages, as to make assured passage of this solid bill—a bill that would have been inconceivable a year ago,” House Judiciary Committee Chairman Emanuel Celler said on March 18, 1965, when the House began hearings on the VRA.
In another scene in Selma, King is shown lecturing LBJ about the need for a voting-rights bill following the death of the white minister James Reeb in Selma, who was brutally beaten by white segregationists following a second aborted march from Selma to Montgomery on March 9. When I saw the film, audience members cheered as King put Johnson in his place. But Johnson didn’t need to be converted at that point; his administration was frantically trying to finalize voting-rights legislation that week.
Johnson championed the Voting Rights Act in a dramatic speech before a joint session of Congress on March 15, which is shown in the film, and his administration skillfully shepherded the bill through Congress, defanging Southern opposition. The result was the most impactful civil-rights legislation of the twentieth century.
At a signing ceremony at the US Capitol, LBJ gave King one of the pens he used to sign the VRA. “You have created a Second Emancipation,” King told the president. It took King’s activism and LBJ’s leadership to get it done.
Why does this matter today?
“When it comes to voting rights, you realize the past isn’t the past,” former NAACP president Ben Jealous once told me. Selma comes out at a time when the VRA is under attack like never before and states are enacting the most significant restrictions on voting rights since the end of Reconstruction. “If there is anything that we should be talking about in terms of legacy, it is really the destruction of the legacy of the Voting Rights Act,” DuVernay said recently.
To protect voting rights today, we must understand how those rights were secured in the past. It requires determined activists who can dramatize the inequities in our democracy and political leaders who can channel the movement’s goals. We have neither a King nor an LBJ today.
Read Next: Ari Berman on voting restrictions in the midterm elections
Bryan McGowan spent twenty-two years in the US Marine Corps, including four tours in Afghanistan and Iraq. When he was stationed at Camp LeJeune in North Carolina from 2005 until 2010, McGowan used same-day registration to register and vote during the early voting period in the state.
He relocated to Georgia in 2010 because of his military service and returned to North Carolina in 2014. On the first day of early voting this year, McGowan arrived at his new polling place in western North Carolina to update his registration and vote, like he had done in the 2008 presidential election, but this time he was turned away. North Carolina eliminated same-day registration as part of the sweeping voting restrictions enacted by the Republican legislature in the summer of 2013. The registration deadline had passed, and McGowan was unable to update his registration and vote. “All I want to do is cast my vote,” the disabled veteran said. After fighting for his country abroad, McGowan felt betrayed by not being able to vote when he returned home.
Sadly, McGowan’s story was not atypical this election year. Voters in fourteen states faced new voting restrictions at the polls for first time in 2014—in the first election in nearly fifty years without the full protections of the Voting Rights Act. The number of voters impacted by the new restrictions exceeded the margin of victory in close races for senate and governor in North Carolina, Kansas, Virginia and Florida, according to the Brennan Center for Justice.
In the North Carolina senate race, Republican Thom Tillis, who as speaker of the North Carolina General Assembly oversaw the state’s new voting law, defeated Democrat Kay Hagan by 50,000 votes. Nearly five times as many voters in 2010 used the voting reforms eliminated by the North Carolina GOP—200,000 voted during the now-eliminated first week of early voting, 20,000 used same-day registration and 7,000 cast out-of-precinct ballots.
Lawyer Allison Riggs of the Southern Coalition for Social Justice in Durham flagged dozens of stories of disenfranchised voters and election problems in North Carolina. Voters were not able to register during the early voting period. There were longer lines during early voting because the state cut early voting by a week. And there were longer lines on election day because of the shorter early voting period, particularly in heavily Democratic urban areas like Durham, Raleigh, Charlotte and Greensboro, where wait times stretched to over two hours at some polling places. This was the line at the Southern High School precinct in Durham County.
Leslie Culbertson arrived at her polling place in Charlotte’s Eastover Elementary School expecting to quickly cast her ballot. “The last time I voted here the line was nothing,” she said. But this time the wait was an hour and Culbertson had to leave the polls without voting to pick up her children from school.
Many voters also arrived at the wrong polling location, where they could no longer cast a regular ballot out-of-precinct. Here’s a photo of voters waiting to cast a provisional ballot at the Chavis Community Center in Raleigh, located in a predominately African-American, low-income part of town. There were 216 voters in the line as of 3:30 pm on Election Day. The provisional ballots they cast will most likely not be counted. “We were getting tons and tons of calls from voters who were turned away because they were at the wrong precinct,” Riggs said.
More than 450 voters were disenfranchised in North Carolina’s primary because the state eliminated same-day registration and out-of-precinct voting. Riggs expects that number will be significantly higher for the general election, even as turnout increased in North Carolina compared to 2010 for the early voting and general election period. “The real question is what would turnout have been like if these voters hadn’t been disenfranchised?” she says.
Nationally, voter turnout in 2014 has been estimated at 36.6 percent, the lowest level since 1940. In North Carolina and across the country, the electorate was older, whiter and more conservative than in 2008 and 2010, which is exactly what Republicans wanted. The new voting restrictions contracted an already-minuscule electorate. Nearly twice as many Americans chose not to vote as voted in 2014.
As turnout decreased, voting problems increased. The Election Protection coalition received 18,000 calls at the 1-866-Our-Vote hotline, a 40 percent increase over 2010.
Some of the starkest examples of voter disenfranchisement occurred in Texas, where scores of voters were prevented from casting ballots because of the state’s discriminatory voter ID law. “We saw out and out disenfranchisement,” says Myrna Perez of the Brennan Center for Justice, who monitored voting problems in Texas on Election Day.
Six hundred thousand registered voters don’t have the required voter ID in Texas but the state issued only 407 new voter IDs as of Election Day. “There are more licensed auctioneers (2,454) in Texas than there are people with election identification certificates,” reported the Texas Observer.
It was a grim election for voting rights. Many of the Republican politicians who led the effort to make it harder to vote were re-elected or elected on Tuesday, such as Tillis in North Carolina, Greg Abbott in Texas, Rick Scott in Florida, Scott Walker in Wisconsin, Kris Kobach in Kansas, Jon Husted in Ohio.
With more states under GOP control, the highest number since the 1920s, expect new states to pass voting restrictions in the near future. In Nevada, which is now controlled by Republicans, GOP strategists are already urging the Republican legislature to swiftly enact a new voter ID law.
Since Republican legislatures across the country implemented new voting restrictions after 2010 and the Supreme Court gutted the Voting Rights Act, it’s become easier to buy an election and harder to vote in one.
Read next: After the midterms, time to fight back
On Monday, October 27, eight activists with Moral Monday Georgia occupied the office of Georgia GOP Secretary of State Brian Kemp, holding signs that read “Let Us Vote.”
There are 800,000 unregistered African-American, Hispanic and Asian eligible voters in Georgia. This year, the New Georgia Project registered 85,000 of them. After the applications were submitted, Kemp subpoenaed the group’s records and accused them of voter registration fraud. It turned out that only 25 of the forms were fraudulent and the group was required by law to turn them in regardless.
Despite the scant evidence of voter fraud, 40,000 new voter registration applications have yet to be processed in the state, according to the New Georgia Project. Civil rights groups sued Kemp and voter registration boards in five heavily populated urban counties, but on Wednesday a Fulton County judge dismissed the lawsuit. It was the latest court decision restricting voting rights this election year.
Sixty percent of the voters registered by the New Georgia Project are under 35. “If we don’t get them engaged, if we have a chilling effect on their very first time to vote, they may never come back to the polls,” Georgia House minority leader Stacey Abrams, founder of the New Georgia Project, recently told Rachel Maddow.
Those 40,000 missing voters could very well be the difference in a hotly contested Senate race between Republican David Perdue and Democrat Michelle Nunn and a close gubernatorial contest between Republican incumbent Nathan Deal and Democratic challenger Jason Carter.
As Kemp told Georgia Republicans in September, “The Democrats are working hard, and all these stories about them, you know, registering all these minority voters that are out there and others that are sitting on the sidelines, if they can do that, they can win these elections in November.”
Georgia is far from the only battleground state where voting rights are under attack this year.
According to the Brennan Center for Justice, twenty-one states have put new voting restrictions in place since the 2010 election, fourteen for the first time in 2014.
Last year, North Carolina passed the most sweeping voting restrictions since the passage of the Voting Rights Act. Key provisions of that law—cutting early voting by a week, eliminating same-day registration during the early voting period, prohibiting the counting of provisional ballots cast in the wrong precinct—are now in effect. The new restrictions could swing the razor-thin Senate race between Democratic incumbent Kay Hagan and Republican Thom Tillis.
During the last midterm election, 900,000 North Carolinians voted early, including over 200,000 during the now-eliminated first week of early voting, 20,000 used same-day registration and 7,000 cast out-of-precinct ballots. The new restrictions could hamper turnout among African-Americans and younger voters in North Carolina, harming Hagan’s campaign. During the May primary, more than 450 voters were disenfranchised by provisions of the new law—a disturbing preview of what’s to come.
North Carolina is one of eight states where black voters could decide who controls the Senate, according to a new report by the Joint Center for Political and Economic Studies. (The others are Arkansas, Colorado, Georgia, Kansas, Kentucky, Louisiana and Michigan.) “Many of these races are challenging for Democrats,” notes the report, “and low black turnout will guarantee Democratic losses.”
Kansas is another state where new voting restrictions could decide three tight races for Senate, governor and secretary of state. Kansas adopted a strict voter-ID law that caused voter turnout to decrease two to three percent compared to similar states without voter-ID laws in 2012, according the Government Accountability Office. The state has also adopted a controversial proof of citizenship requirement for voter registration—leading to 23,000 voters having their registration status suspended.
“Voters still on the suspense list have until the day before the election to submit documentation of citizenship,” says Julie Ebenstein of the ACLU. “Ironically, since Kansas requires photo ID at the polls, someone on the suspense list who filled out and submitted a registration application and thinks they are registered could go to the polls on election day, show their US passport as photo identification, but be prohibited from voting because they did not submit documentation of citizenship the previous day.”
The Supreme Court blocked Wisconsin’s voter -ID law for 2014—a rare voting rights victory this year—but Wisconsin Republicans still eliminated early voting on nights and weekends. That could impact the close governor’s race between incumbent Scott Walker and Democrat Mary Burke. Over 250,000 Wisconsinites voted early in 2012, one in twelve overall voters. Early voters favored Obama 58 to 41 percent in Wisconsin in 2012, compared to his 51 to 48 percent margin on Election Day.
The most significant election problems will likely occur in Texas, where a voter-ID law struck down twice as discriminatory—most recently as an “unconstitutional poll tax”—is now in effect because the Supreme Court gutted the Voting Rights Act. Six hundred thousand registered voters in Texas don’t have a valid voter ID, but the state had issued only 279 new voter IDs of September. If you think voter-ID laws don’t disenfranchise people and aren’t discriminatory, read this Guardian story on Eric Kennie, one of the 600,000 Texans who won’t be able to vote.
These obstacles won’t be easily overcome. But hopefully in certain states the new laws will produce a backlash, like in 2012, and the effort to make it harder to vote will make people more determined to vote. That’s a risky proposition, especially in a low-turnout midterm election.
Unfortunately, we won’t know how many voters were prevented from casting ballots until after the election, when it’s too late to rectify the injustice. If the returns are close in states like Georgia, North Carolina and Kansas, prepare for a very long Election Night and a prolonged legal battle in the weeks to follow.
Why has the Republican Party been steadily attacking the voting rights of people of color and young people over the past decade? And why has the Supreme Court gone along with them in their assault on the Voting Rights Act? “The Republican Party, at least some segments of it,” Ari Berman explains in this segment Moyers & Company, “have analyzed the electorate, figured out where they can try and cut down voter turnout, and they’ve passed laws that have tried to do that.” Berman also reports that ALEC, the right- wing lobby group, has been deeply involved with Republicans in this process to disenfranchise voters across the country. For more on this fight, read Berman’s article, “The GOP Is Winning the War on Voting”.
In 1963, only 156 of 15,000 eligible black voters in Selma, Alabama, were registered to vote. The federal government filed four lawsuits against the county registrars between 1963 and 1965, but the number of black registered voters only increased from 156 to 383 during that time. The law couldn’t keep up with the pace and intensity of voter suppression.
The Voting Rights Act ended the blight of voting discrimination in places like Selma by eliminating the literacy tests and poll taxes that prevented so many people from voting. The Selma of yesteryear is reminiscent of the current situation in Texas, where a voter ID law blocked by the federal courts as a discriminatory poll tax on two different occasions—under two different sections of the VRA—remains on the books.
The law was first blocked in 2012 under Section 5 of the VRA. “A law that forces poorer citizens to choose between their wages and their franchise unquestionably denies or abridges their right to vote,” wrote Judge David Tatel. “The same is true when a law imposes an implicit fee for the privilege of casting a ballot.”
Then the Supreme Court gutted the VRA—ignoring the striking evidence of contemporary voting discrimination in places like Texas—which allowed the voter ID law to immediately go into effect. “Eric Holder can no longer deny #VoterID in #Texas after today’s #SCOTUS decision,” Texas Attorney General Greg Abbott tweeted minutes after the Shelby County v. Holder decision. States like Texas, with the worst history of voting abuses, no longer had to approve their voting changes with the federal government. Texas had lost more Section 5 lawsuits than any other state.
The law was challenged again by the Justice Department and civil rights groups. After a lengthy trial, it was struck down, again, on October 9, in a searing opinion by Judge Nelva Gonzales Ramos, who called the law “an unconstitutional poll tax.”
Ramos found that 600,000 registered voters in Texas—4.5 percent of the electorate—lacked a government-issued ID, but the state had issued only 279 new voter IDs by the start of the trial. African-Americans were three times as likely as whites to not have a voter ID and Hispanics twice as likely. The law was passed by the Texas legislature, “because of and not merely in spite of the voter ID law’s detrimental effects on the African-American and Hispanic electorate,” Ramos wrote.
But five days later, the US Court of Appeals for the Fifth Circuit —one of the most conservative courts in the country—overruled Ramos, arguing that striking the voter ID law “substantially disturbs the election process of the State of Texas just nine days before early voting begins.” The appeals court curiously believed that blocking the voter ID before the election would do more harm to voters than preserving a law that could disenfranchise 600,000 voters in the state.
The Supreme Court upheld the Appeals Court decision on October 18. It was the first time since 1982 that the Court approved a voting law deemed intentionally discriminatory by a trial court. Justice Ginsburg dissented, joined by Justices Sotomayor and Kagan. “The greatest threat to public confidence in elections in this case is the prospect of enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters,” Ginsburg wrote.
Four major voting rights cases have come before the Supreme Court in the past month—from Ohio, North Carolina, Wisconsin and Texas—and in three instances the court has ruled to restrict voting rights.
The Roberts Court has set a trap for voters. First it paralyzed Section 5 of the VRA, taking away the federal government’s most potent weapon for stopping voting discrimination. Instead, it urged the Justice Department and civil rights groups to challenge discriminatory voting changes under Section 2 of the VRA, even though Justice Kennedy admitted in 2009 that “Section 2 cases are very expensive. They are very long. They are very inefficient.” Then, when a slew of lawsuits are filed under Section 2, the Supreme Court largely sides with those restricting voting rights. It seems like the Court’s conservative majority is planning to eviscerate every important part of the VRA.
The recent decisions show that Section 2 of the VRA is no replacement for Section 5. Earlier this year, members of Congress introduced a legislative fix for the VRA to resurrect Section 5 in states with five voting rights violations in the past fifteen years. One of the states covered by the new law would be Texas.
It’s been a bad week for voter ID laws.
On Wednesday, the Government Accountability Office released a comprehensive study showing that strict voter ID laws in Kansas and Tennessee decreased voter turnout by two to three points from 2008 to 2012 compared to similar states without voter ID laws, leading to 122,000 fewer votes.
Last night, a federal district court struck down Texas’s voter ID law, the strictest in the country, calling it “an unconstitutional poll tax.”
An hour later, the Supreme Court released a brief order blocking Wisconsin’s voter ID law for November. The 6-3 ruling didn’t explain why, but hinted it was because the massive new voting restriction was reinstated by the US Court of Appeals for the Seventh Circuit weeks before the election. Nearly 10 percent of registered voters in Wisconsin don’t have a government-issued ID, and the new requirement was causing chaos on the ground. (Wisconsin’s elimination of early voting on nights and weekends remains in effect.)
My colleague John Nichols wrote about the Wisconsin decision, so I’ll focus on the Texas case.
The 147-page opinion by Judge Nelva Gonzales Ramos of the Southern District of Texas, an Obama appointee, is the most extensive rebuke of strict voter ID laws that I’ve read to date. It debunks the myths that everyone has the limited forms of government-issued photo ID required to vote, that it’s easy to get one, that there is an epidemic of voter fraud necessitating such laws, and that voter ID laws are always constitutional.
Judge Ramos found that 608,470 registered voters in Texas, representing 4.5 percent of all registered voters, lack the necessary voter ID, with African-Americans three times as likely as whites to not have a voter ID and Hispanics twice as likely. The state had issued only 279 voter IDs by the start of the trial in September.
She ruled that law, known as SB 14, violated Section 2 of the Voting Rights Act.
“It is clear from the evidence,” Ramos wrote, “that SB 14 disproportionately impacts African-American and Hispanic registered voters relative to Anglos in Texas…To call SB 14’s disproportionate impact on minorities statistically significant would be an understatement.”
There’s no such thing as a “free” voter ID in Texas. To get a qualified voter ID, you need underlying documents that cost money—the most common option being a birth certificate, which ranges from $22 to $47. That’s why Ramos called it a poll tax. Multiple witnesses in the case tried long and hard to get this documentation, and still could not. She pointed to the story of Margarito Lara, who testified at the trial.
Mr. Lara, a 77-year-old Hispanic retiree from Sebastian, Texas, has attempted to locate his birth certificate for more than twenty years. He was born in what he described as a “farm ranch” in Cameron County, Texas. With the help of his daughter, he visited three offices in two counties but was unsuccessful in locating his birth certificate. Mr. Lara later paid a $22.00 search fee to DSHS [Texas Department of State Health Services] to confirm what he already suspected—his birth was never registered. Thus, Mr. Lara must now apply for a delayed birth certificate (using a 14-page packet of instructions and forms) at a cost of $25.00. Additionally, he will have to pay $22.00 for a certified copy of the birth certificate. He testified that he has twice attempted to apply for the delayed birth certificate to no avail.
Two years ago, Eric Holder was widely ridiculed for calling Texas’s voter ID law a poll tax. Now a federal court has agreed.
“We are extremely heartened by the court’s decision, which affirms our position that the Texas voter identification law unfairly and unnecessarily restricts access to the franchise,” the outgoing attorney general said in a statement. “Even after the Voting Rights Act was seriously eroded last year, we vowed to continue enforcing the remaining portions of that statute as aggressively as possible. This ruling is an important vindication of those efforts.”
Even if getting this documentation wasn’t a bureaucratic nightmare, seventy-eight of 254 counties in Texas don’t have a DMV office. “For some communities along the Mexican border, the nearest permanent DPS office is between 100 and 125 miles away,” Ramos wrote. Texas has done virtually nothing to ensure that the hundreds of thousands of voters without ID can easily get one.
Nine plaintiffs in the case lacked a qualified voter ID—twice as many disenfranchised voters as there were cases of voter fraud presented by the state. Texas has successfully prosecuted only four cases of voter impersonation in the past twelve years.
Ramos found that the law was passed not to combat voter impersonation in Texas—which is basically non-existent—but to make it harder for blacks and Hispanics to vote.
The record as a whole (including the relative scarcity of incidences of in-person voter impersonation fraud, the fact that SB 14 addresses no other type of voter fraud, the anti-immigration and anti-Hispanic sentiment permeating the 2011 legislative session, and the legislators’ knowledge that SB 14 would clearly impact minorities disproportionately and likely disenfranchise them) shows that SB 14 was racially motivated.
The law violates Section 2 of the VRA, Ramos said, because it has a discriminatory effect and, most notably, a discriminatory purpose.
This Court concludes that the evidence in the record demonstrates that proponents of SB 14 within the 82nd Texas Legislature were motivated, at the very least in part, because of and not merely in spite of the voter ID law’s detrimental effects on the African-American and Hispanic electorate.
That finding is incredibly significant, meaning that Texas can be “bailed-in” under Section 3 of the VRA and could once again have to approve its voting changes with the federal government under Section 5 of the VRA, which the Supreme Court gutted in June 2013. Texas would be the first state subject to the potent yet little-used bail-in since the Shelby County v. Holder decision. The Court will rule on this request from the Justice Department and civil rights groups like the NAACP Legal Defense Fund in the coming weeks.
The law was previously blocked under Section 5 by a federal court in Washington in 2012—gaining the unique distinction of being struck down twice, under different sections of the VRA. Maybe that’s a sign that Texas should give this whole voter suppression thing a rest. (Texas vowed to appeal immediately. One Republican lawmaker, the former chair of the House elections committee, testified at the trial that Republicans in the legislature would have been “lynched” by the voters if they didn’t pass voter ID in 2011.)
Still, these are only tentative victories. The US Court of Appeals for the Fifth Circuit—the most conservative court in the country—could easily overturn Ramos’s decision. And the Supreme Court could uphold Wisconsin’s voter law if/when it rules on the merits—even though the voter ID laws in Texas and Wisconsin are much more burdensome, in design and practicality, than the Indiana voter ID law upheld by the Court in 2008.
On Wednesday evening, the Supreme Court overruled a Fourth Circuit Court of Appeals decision reinstating same-day registration and out-of-precinct voting in North Carolina for the midterms. Because this was an order to stay the injunction, not a decision on the full merits of the law, the Court’s majority did not explain its reasoning. Justices Ginsburg and Sotomayor dissented.
It’s the second time the Supreme Court has ruled against voting rights in the past ten days, after the court also overruled an appeals court decision reinstating a week of early voting and same-day registration in Ohio.
The roots of the North Carolina case go back to June 25, 2013, when the Court struck down Section 4 of the Voting Rights Act in Shelby County v. Holder, which meant that states with the worst history of voting discrimination—like North Carolina—no longer had to approve their voting changes with the federal government.
A month after that ruling, North Carolina passed the country’s toughest voting restrictions, repealing or curtailing every voting reform in the state that encouraged people to vote. The bill became far more extreme because of the Shelby decision and the federal government no longer had the power to prevent it from becoming law. As Justice Ginsburg wrote in her dissent, “These measures likely would not have survived federal preclearance.”
Key parts of the voting law were challenged in court this summer. A district court denied a preliminary injunction for the Justice Department and civil rights groups like the North Carolina NAACP and the ACLU, but the Fourth Circuit reinstated same-day registration and out-of-precinct voting on October 1.
The Supreme Court’s decision could have a very negative impact on the election. Nearly 100,000 voters used same-day registration during the early voting period in 2012, including twice as many blacks as whites. Roughly 7,500 voters cast their ballots in the right county but wrong precinct in 2012.
States with same-day registration, like North Carolina, have the highest voter turnout in the country. “Average voter turnout was over 10 percentage points higher in SDR states than in other states,” Demos reported for 2012. North Carolinians now have only two more days to register to vote before the October 10 deadline.
Hundreds of voters were prevented from casting ballots in the May primary when the state eliminated these reforms—a disturbing preview of what’s to come. North Carolina has one of the closest Senate races in the country between Kay Hagan and Thom Tillis and is expected to have a large turnout this November. The Supreme Court’s decision could very well decide who controls the Senate.
There’s a cruel irony behind this ruling. The most popular conservative talking point during the Shelby County debate was that Section 2 of the VRA could replace Section 5.
“It seems to me that the Government can very easily bring a Section 2 suit,” Justice Kennedy said during oral arguments.
But challenging voting discrimination under Section 2 has been far from easy of late. In three states where new voting restrictions have been struck down under Section 2 in the past year—North Carolina, Ohio and Wisconsin—the decisions have been reversed by the appeals courts or Supreme Court.
North Carolina’s new voting restrictions are now in effect until a full trial in July 2015. The Tarheel State is the case study for how devastating the Supreme Court’s gutting of the VRA has been.